DWR Currents

November 17, 2011

Notices of Non-Use to be mailed by end of November
Missouri River flood officially over but recovery and preparation for 2012 continue
Lake Afton dam modifications approved by chief engineer
Upcoming Events

Notices of Non-Use to be mailed by the end of November
In 1999, the Kansas Legislature amended the Kansas Water Appropriation Act to require the chief engineer to notify water right owners by certified mail whenever the owner has reported three or more consecutive years of non-use on their annual water use reports. While receiving certified mail from a state agency may seem threatening, the legislature’s intent was merely to provide water right owners an opportunity to remedy an abandonment situation before five consecutive years of non-use occurs. That’s because K.S.A. 82a-718 requires that all water rights of any kind be deemed abandoned and terminated when no lawful beneficial use of water has been made for five successive years without due and sufficient cause for that non-use.

Acceptable due and sufficient causes for non-use of water can be found in Kansas Administrative Regulation (K.A.R.) 5-7-1.  The reasons must demonstrate that water use was prevented or made unnecessary during the period water was not used for beneficial purposes.  The reasons for non-use should always be noted on the annual water use report so that they are a matter of record in the division’s files.  However, if an owner has not been reporting reasons for non-use, that information can be provided to the Division of Water Resources in writing at any time.  

It is also important to note that the laws were changed during the 2010 legislature such that water rights in areas that have been closed to new appropriation by rule, regulation or order of the chief engineer, where means of diversion are available to put water to the authorized beneficial use within a reasonable time, shall be deemed to have due and sufficient cause for non-use.  Further revisions to these statutes have also been recommended by the  Ogallala Aquifer Advisory Committee (OAAC) for consideration during the 2012 legislative session to protect water rights from unintentional forfeiture and to help promote conservation.

Before a water right can be declared abandoned, the chief engineer must conduct a hearing, which gives the water right owner a final opportunity to submit evidence that a water right has not been abandoned.  The chief engineer’s staff carefully researches the non-use with the water right holder before reaching this step, but the burden of proving due and sufficient cause for non-use ultimately rests with the water right holder. If no due and sufficient cause can be found, the chief engineer will schedule a hearing and notify the water right owner(s) at least 30 days prior to the hearing date.   Last year, DWR reviewed 124 files that had more than 5 years of non-use.  Of those, 115 files were found to be in good standing with due and sufficient cause during the period of non-use.   The remaining 19 files had a verified report prepared, which is the next step toward an abandonment hearing.

If you receive a notice regarding non-use, but you believe the division’s records may be incorrect, it is in your best interest to provide documentation as soon as possible.


Missouri River flood officially over but recovery and preparation for 2012 continue
With the official end of the 2011 Missouri River flood, the U.S. Corps of Engineers (Corps) has transitioned from emergency flood operations to damage assessment and recovery, with priority going to repairing infrastructure important to life and human safety.  Water is currently being released from Gavins Point Dam at a rate of 40,000 cfs, but discharge will drop to 20,000 cfs in early December, after which most of the remaining water trapped behind downstream levees is expected to drain from the floodplains.  Evacuation of stored water also continues to be made from Fort Randall, Fort Peck, Big Bend, Oahe and Garrison Reservoirs.  

The 2011 flood occurred after a winter of record snowfall in the upper Rocky Mountains and heavy spring rain events in Montana and other areas within the upper Missouri River basin.  The return of La Niña may mean wetter than normal conditions over the upper Missouri River basin through at least early 2012 and set the stage for flooding again next spring.  The Corps has already indicated it will change operations of their reservoirs during the 2012 season, by taking a more flexible approach to releases this winter in order to drain as much water out of the system as possible, a more aggressive approach to releasing water next spring and communicating more frequently and more broadly as the 2012 season unfolds.  

While impacts in Kansas may not have been as severe as those occurring upstream in Iowa, Missouri and Nebraska, there were impacts in portions of Atchison, Doniphan, Leavenworth and Wyandotte counties.  Communities such as Elwood and Wathena were voluntarily evacuated for much of the summer.  Many other Kansans lost their homes and businesses  or  suffered  crop  damage  due  to  flooding.  Preliminary  damage  assessments  are  underway  by  the Federal Emergency Management Agency and the Kansas Department of Emergency Management for these counties.  Maps of federal and non-federal levees breached by the 2011 flood can be found on the Corp’s Kansas City District website.  

Governor Brownback requested a federal disaster declaration for Kansas counties affected by the flood in June and has asked for an independent review of the Corps’ management of the Missouri River system in 2011. 

Nebraska and Iowa have recently backed out of the Missouri River Association of States and Tribes as they felt the organization was not responsive to their concerns related to flood control.  A congressional hearing focused on this summer's flooding has been scheduled in Washington D.C. for Nov. 30.


Lake Afton dam modifications approved by chief engineer
Chief Engineer David Barfield issued a modification permit for the waterworks dam to Sedgwick County on November 9, 2011. This 47’ high dam was constructed between 1939 and 1942 for water recreational purposes. Five different modifications were approved during construction of the dam.

Sometime between 1981 and 1989, two fish rearing ponds were constructed near the downstream toe, along with the placement of two siphon pipes over the dam to supply water to the ponds. During this same time period, three pipes were placed at the concrete weir spillway, as gravity flow pipes. These pipes were removed prior to June 1999, and no longer exist. Between 1999 and 2003, an outlet pipe was constructed through the concrete weir spillway structure near the right wall to allow flow downstream when the reservoir elevation is below the crest of the weir.  

This dam is a Class C, high hazard dam that has had increased erosion occurring in the service spillway outlet channel due to failure of a large concrete grade control weir located 875 feet downstream from the dam. The erosion has created a headcut upstream to the low water crossing used for a perimeter road. A vertical drop of over 10 feet is located at the downstream side of the crossing.  The current modification includes the construction of 3 weir and impact basins along with a bridge structure to replace the low water crossing. Riprap will also be placed in the outlet channel to protect the slopes of the outlet channel during flood events.


Upcoming Events
Nov. 20:  Kansas Association of Conservation Districts Annual Convention
Dec. 1:  Northwest Kansas GMD No. 4 Board Meeting
Dec. 6:  Elevation Certificates and Letters of Map Amendment (Russell)
Dec. 7:  Post Flood Responsibilities (Newton)
Dec. 8:  Big Bend GMD No. 5 Board Meeting
Dec. 8:  Kansas-Colorado Arkansas River Compact Administration (ARCA) Meeting
Dec. 13:  Equus Beds GMD No. 2 Board Meeting