DWR Currents

February 28, 2012

Legislature votes to abolish water right abandonment (“use it or lose it”) in closed areas
Legislature contemplates repealing several water statutes
Kansas’ first irrigation commissioner and chief engineer
Upcoming events

Legislature votes to abolish water right abandonment (“use it or lose it”) in closed areas
House Bill 2451 would amend a section of law dealing with the abandonment of water rights, eliminating the requirement that groundwater rights in areas declared closed to further appropriation be required to have a means of diversion available "to put water to beneficial use within a reasonable time."   The prospect of losing a water right through non-use has long been a concern to many water right holders.  If signed by Governor Brownback, groundwater rights in closed areas would be considered to have due and sufficient cause for nonuse and therefore not be subject to forfeiture because of abandonment.  The change would allow water right holders in those areas to conserve water without the fear of losing their water rights.  KDA provided detailed testimony on this bill on Jan. 19 and Feb. 7.  The bill passed unanimously in both the Kansas Senate and the House of Representatives.

Right:  Map of areas closed to new appropriation in Kansas.  (Click to enlarge image.)

The legislature also took final action on Senate Bill 272, amending the Multi-Year Flex Account (MYFA) program, which passed unanimously in both the Kansas Senate and the House of Representatives.  More information about the MYFA legislation can be found in the Feb. 2 edition of DWR Currents.  Chief Engineer David Barfield’s Feb. 8 testimony is also available for download.  The bill will need to be signed by Governor Brownback before becoming law.

Senate Bill 310, establishing Local Enhanced Management Areas (LEMAs), also moved forward last week.  On Feb. 24, the Senate voted unanimously to approve the bill.  It must now be heard by the Kansas House of Representatives and signed by the Governor before becoming law.  An overview of LEMAs bill can be found in the Jan. 26 edition of DWR Currents.

All three bills are key pieces of Governor Brownback’s water policy proposals, following work of his Ogallala Aquifer Advisory Committee (OAAC) and the Kansas Water Authority (KWA).

Newly introduced legislation by the Kansas Aggregate Producers proposes to streamline processes related to permitting water use at groundwater pits.  It has been assigned bill number House Bill 2698.  A hearing was held on Feb. 13, by the House Standing Committee on Agriculture and Natural Resources.

Additional information and status of pending legislation can be found in DWR’s Water Resources Bill Summary.


Legislature contemplates repealing several water statutes
House Bill 2596 proposes the repeal of K.S.A. 74-509, enacted in 1919, setting forth the duties of the Kansas irrigation commissioner.  Those duties included gathering irrigation data, inspecting irrigation plants, leasing state owned equipment primarily used for irrigation feasibility studies at state irrigation farms and selling or disposing of any property in the state’s possession not needed to that end.  KDA has testified in favor of the bill, since the statute is no longer needed with the water right system currently in place and the data collection currently available.

In separate legislation, House Bill 2649 proposes repeal of the following water related statutes:

K.S.A. 24-105 pertaining to the construction of a dam or levee by a landowner.   This issue is more appropriately dealt in the Obstructions in Streams Act and the Levee Law.  Furthermore, this statute is no longer referenced by current regulations adopted by the chief engineer.

K.S.A. 82a-312, 82a-313 and 82a-314 seting forth requirements for dams built under the federal agriculture program.  These obsolete statutes pertain only to those dams built under the former Agricultural Conservation Program established in 1936 and administered by the USDA Farm Service Agency.  K.S.A. 82a-301 through 82a-304 of the Obstructions in Streams Act, now more specifically deal with these issues.

K.S.A. 82a-735 pertaining to water rights formerly owned by the Sunflower Army Ammunition Plant, near De Soto, in Johnson County.  This statute authorized the State of Kansas to enter into negotiations, agreements and contracts with the federal government regarding Water Right, File Nos. 37 and 38, when the legislature deemed it necessary for the achievement of policies of the state relative to the water resources of Kansas.  The land and water rights were ultimately sold to a private company in 2005. Therefore, the agency supports repeal of this obsolete statute, since the federal government is no longer involved.

Kansas’ first irrigation commissioner and chief engineer
As noted above, one of the statutes recommended for repeal by the Kansas Legislature pertains to the duties of the Kansas irrigation commissioner.  The first (and likely last) irrigation commissioner of Kansas was George S. Knapp, appointed on May 29, 1919.  In his reports to the then "Kansas State Board of Agriculture" in the 1920’s, Knapp, praised the passage of the new irrigation laws, which he felt marked a change in the state's efforts to develop the water resources of Kansas for purposes of irrigation.  Prior to this time, the state’s authority was primarily geared toward construction of irrigation and pumping plants for experimental and demonstrational purposes.  

George Knapp, the first Irrigation Commissioner of Kansas, who later became Chief Engineer when the Division of Water Resources was created in 1927.  This year marks DWR’s 85th anniversary.  

However, Knapp's reports also lament the limitations and obsolescence of many of Kansas’ older irrigation laws which remained in force at that time.  According to Knapp, water rights in the 1920’s were being recorded in such a manner that there was no uniform method of filing claims and the rights of appropriators were not properly safeguarded.  Under the law, a person, company or corporation wishing to appropriate water simply posted a notice at the point of diversion, stating the amount of the claims and the means by which water was to be diverted; and then filed an identical notice with the county clerk’s office within 10 days.  This process led to many inconsistencies and inaccuracies of record.  In one county, Knapp discovered the notices of appropriation were merely being tacked on a wall around the county office, with no real record of the appropriation being maintained and were at risk of blowing out the windows with a gust of wind.  In another case, the notices were being "pigeon-holed" in a designated slot in the county clerk’s vault, which hindered public access to the information.  Moreover, Knapp noted that no one with proper authority or knowledge checked the amounts of the claims, often resulting in excessive claims by early appropriators.  To complicate matters there was no parity between surface water and groundwater laws across the state.  For instance, there were no groundwater appropriation laws east of the 99th meridian, leaving no method for Eastern Kansas irrigators to claim or develop a right related to protect their investments to use groundwater.

Right:  Irrigation pumping plant demonstration at the Kansas State Fair in Hutchinson, from Knapp’s 1926 report. (Click to enlarge image.)

In a 1920 report, Commissioner Knapp made four recommendations:

1. Change the method of filing and recording water rights from the "county plan" to a central state office.
2. Adopt a water code for the entire state as now applying to that section of Kansas west of the 99th meridian.
3. Make underground waters appurtenant to all lands of the state, with a definite code for the use of such waters.
4. Combine the state irrigation, drainage, flood control and water power in one department for the purpose of developing a comprehensive and logical water policy.

The report also indicates Knapp’s concern for the long term supply of groundwater, stating that although it was likely to be inexhaustible for the present generation, the continued pumping of large quantities of water lowered the groundwater table and caused depletion of the supply.  Therefore, it was his recommendation that sufficient data be gathered to protect early appropriators in their rightful use of water.  

Some of Knapp’s suggestions were later incorporated into a revised set of laws in 1927, which abolished the Kansas Irrigation Commission, combining it with other agencies and creating the Division of Water Resources.  George Knapp became the first Chief Engineer of Kansas during the transition.  However, Knapp’s ideas weren’t fully realized until a 1944 Kansas Supreme Court ruling struck down those early appropriation statutes as ineffectual.  The Governor of Kansas then appointed a panel to help Knapp create a new system of water rights, which became the 1945 Kansas Water Appropriation Act.  A more thorough essay about the accomplishments of George Knapp and a history of Kansas water law can be found in The Art of Water and the Art of Living, by James E. Sherow.


Upcoming events
Feb. 29: Kansas Water Issues Forum (Wichita)
Mar. 1: Kansas Water Issues Forum (Hays)
Mar. 1: DWR annual water use reports due in Topeka
Mar. 1: Basics of the National Flood Insurance Program (Independence)
Mar. 8: Northwest Kansas GMD No. 4 Board Meeting (Colby)
Mar. 8: Big Bend GMD No. 5 Board Meeting (Stafford)
Mar. 13: Equus Beds GMD No. 2 Board Meeting (Halstead)
Mar. 14: Southwest Kansas GMD No. 3 Annual and Board Meetings (Liberal)
Mar. 20: Western Kansas GMD 1 Annual and Board Meetings (Sharon Springs)
Mar 27-29: 45th Annual KRWA Conference (Wichita)