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Water Law
University of Kansas School of Law
Peck, John C.

Water Law – Peck – Fall 2016
In General:
 
Federal v State Law P. 4: “Water rights are primarily a matter of state law . . .  Federal law is the source of limited rights held by the federal government and Indian tribes in the western United States.  The federal government also regulates some activity related to water use pursuant to its power over interstate commerce and navigable waters . . . and has constructed a number of water projects.”
Most found in KSA 82a, especially 701 et sec.
Water Agencies
Corps of Engineers
Principle goal is flood control in the East.
Bureau of Reclamation
Principle goal is reclamation (irrigation of the desert)
U. S. Dept. of Agriculture
Division of Water Resources
Chief Engineer
Principal agency of KS for water rights. 82a-706. Deal with allocation.
Kansas Water Authority
 
Kansas Water Office
Director. Public Policy Issues.
Kansas Department of Health & Environment
Water Quantity and Measurement
1 acre = 43,560 sq. ft. (~208’X208’ ~ football field)
1 acre-foot = 43,560 cu. ft. = 325,851 gallons
1 million gallons ~ 3 ac. feet
Rate of flow
Cfs: Cubic Feet Per Second
Volume of water that moves in one second
Used for irrigation
Gpm: Gallons per Minute – How irrigators size their irrigation
Cities think in Millions of gallons per day.
1 cfs running 24 hours ~ 1.98 ac. feet
Consumptive Use
Classification of Water Chart, p. 1 Supp.
Consumptive use of Water: amount (or %) of water used up
Component of a water right and is only important when someone tries to change a water right.
Affects those downstream water rights because not as much is left over.
E.g., Means that it diverts an amount and puts a specific percentage back in.
100% (industry)
40% (irrigation)
Evapotranspiration (water that goes out of plants into the atmosphere)
Stays in ground or goes back into the river.
0% (hydropower plant)
Used basically to turn a turbine but all of water goes back into the river.
: Evaporation, Transpiration, Sublimation, Condensation, Transportation, Precipitation, Deposition, Snowmelt, Surface Flow, Infiltration, Percolation, Groundwater flow, Plant uptake
POINT: 801-702 All water within the state of KS is hereby dedicated to the use of the people of the state, subject to the control and regulations of the state in the manner herein prescribed
:
Hydrology: The Science of Water on Earth
Watershed/River Basin
Water that drains to a certain point. Water finds a common point to run in.
Interbasin transfers move water from one shed or point to another. Affects people downstream.
Specific streams or rivers that empty into a bigger water
Area of ground water storage
Water Table
The upper zone of saturated soil.
Cone of Depression
Shape of depression around a water pump or well at the top of the water table.
Draw Down
The space between two wells. If cone of depressions overlaps, then pressure drops etc.
Alluvial Aquifer: Check this definition.
Alluvium soft material of saturated soil. Underneath is flowing water
Water v. Water Rights
:  liquid, personal property, UCC, UCC statute of frauds
Water right:  right to use a quantity of water from a specific place over a period of time, real property, attached (appurtenant) to land, statute of frauds for real estate, deed, mortgage
Water right means any vested right or appropriation right under which a person may lawfully divert and use water. It is a real property right appurtenant to and severable from the land on or in connection with the water is used and such water right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will or other disposal, or by inheritance.
Overview of Doctrines
Surface water:
Riparian rights (Eastern states)
Buying land abutting a stream, you have a water right by virtue of that ownership
Prior appropriation rights (Western states)
Gained by beneficial use. More separable.
You can use all of the water in the stream as long as it is being put to beneficial use
Disputes solved by priority of ownership
:      
Absolute ownership, Reasonable use, Correlative rights, Prior appropriation, Restatement of Torts
Water Allocation Law Issues/ KS Issues
Individual v. Individual, Individual v. State, State v. State, Individual v. Federal Govt., State v. Federal Govt., County v. County., International: Global warming, melting of glaciers, rising of the seas, national defense issues,
Prior Appropriation
Irwin v. Phillips, p. 16
The Miner who selects a piece of ground to work, must take it as he finds it, subject to prior rights, which have an equal equity, on account of an equal recognition form the sovereign power.
Two Miners use of water on federal lands, one is junior.
: Does older appropriator have right to take all the water?
: Junior is subject to conditions when he enters the stream.
California Doctrine and Colorado Doctrine, p 7 & 21
 
CO: doesn’t recognize common law riparian water rights, only Prior Appropriation.
Constructive Notice
Notice of Prior Appropriation AND
Quantity being Consumed.
Elements:
Intent: [Plan + Action, $$$] Notice: [ Sufficient information of existence, Constructive notice is okay – go by agency and ask] Diversion: [ Moving the water – Not Critical] Application to use AKA Beneficial Use
Descriptive Parameters, Note 1, p. 25 and Kansas- Can Show Diversion
Source of Supply, Point of Diversion, Place of Use, Type of Use, Quantity, Rate, Priority Date,
Also in KS: Water right number Consumptive Use.
:
Doctrine of prior appropriation should NOT be interpreted as demanding a diversion of water where a diversion is unnecessary to achieve the intended beneficial use (In re adjudication of the Missouri River Drainage Area)
5-5-1z, Suppl. P. 55 If you are taking some of the water out of the stream or flow, it is diversion. Almost all water rights involve a diversion of some sort. The act of bringing water under control by

order to have standing to sue on a water right. Almost all uses have economic use and therefore beneficial use.
Kansas beneficial uses
p. 36: Except for 4 uses: Domestic; farm and domestic animals, oil and gas, reservoir, and farm pond.
Must get a permit except for these uses. Unlawful for individual to appropriate or threaten to appropriate without first applying and getting permit. For any person to violate any condition of a vested right, appropriation right or an approved application for a permit to appropriate water for beneficial use.
(b) Class c misdemeanor.
Domestic Uses (only definition in statute) 5-1-1 as well. Person, Unit for family uses, Livestock, Irrigation, not exceeding 2 acres in size for garden, orchards etc.
Municipal Use Definition: p. 56 (tt)
Various uses of water delivered through common water distribution system operated by Municipality, Rural H2O district, Public wholesale water supply district
Any person/entity serving 10 or more hookups for residents or mobile homes.
,
Stock water (for big feedlot) p. 58
Capacity to confine 1,000 or more
Any other diverting 15 or more acres eet per annum.
Hydrologic Dredging: You must get a permit even though the water isn’t wanted. The fact is that it isn’t there
:  Pumping out water to build something. Have to get a permit.
Sand Pit: Create a lake by digging out sand. You have opened it for evaporation which is a diversion and needs a permit.
Speculation (n. 1, p. 36, K.S.A. 82a-709(i) (KAR 5-8-6 (20 years to perfect municipal right)
Quantity of Water note 1 p. 36
How much water can you get in your water right?
You must demonstrate that you can use the amount of water that is reasonable given what you are going to do
709c (p. 30) Permit Application
Maximum rate to be diverted
Total annual quantity stock
709(i) Cities
Estimated future requirements
Project out over 20 years.
The west does not like the speculative tying up of water
Once you get the water you must prove that you have used the amount within the specifications of the permit.
Duty of water, note 1, page 46
A measure of water, which by careful management and use, without wastage, is reasonable required to be applied to a given tract of land for such a period of time as may be adequate to produce therefrom a max amount of such crops as order are grown thereon. Not a hard and fact unit of measurement, but is variable per conditions.