Kansas SB 46: Managing Water Rights and Impairment Problems through Notice and Administrative Procedure

S.B. 46, Sess. of 2017, (Kan. 2017) (clarifying the statutes governing Water Conservation Areas and altering the remedies and procedures available to water right holders for water impairment).

Kansas Senate Bill 46 (“SB 46”) grew out of discussions among stakeholders—including the Kansas Department of Agriculture, Kansas Farm Bureau, and groundwater management districts—following the implementation of the state’s newly established Water Conservation Areas (“WCAs”).  In 2015, the Kansas Legislature created WCAs as a means to extend the usable lifetime of water supplies, specifically the Ogallala-High Plains aquifer.  WCAs incentivize water rights owners in areas with particularly strong conservation needs to voluntarily decrease the total amount of water they use.  The initial statute authorizing WCAs provided that the Chief Engineer of the Division of Water Resources (“DWR”) could approve plans for individual rights holders participating in the WCAs, allowing the rights holders greater flexibility in the use of their water rights.

Several impacted parties worried that the provisions describing these increased flexibility measures were unclear.  The Senate Committee on Agriculture and Natural Resources directly sponsored SB 46 to address these concerns.

As introduced, the bill contained several significant changes.  The bill provided more details about the flexibility for water rights owners who join WCAs.  Specifically, the Chief Engineer may authorize management plans for rights holders participating in WCAs.  The management plans can allow right holders to stretch their allotments over years, apply for new use types, and draw more water from one right than previously allocated, so long as the total use does not exceed their total rights under the management plan.  Acknowledging the potential impacts of allowing participants to exceed some allocations, the bill also required neighboring rights owners to be notified about the WCA plan.  Additionally, the bill expanded the potential areas eligible for WCAs to include areas closed to new appropriations.

The bill was genera supported, and numerous groups testified in support before both the House and the Senate including: the Kansas Livestock Association, the Kansas Department of Agriculture, Southwest Kansas Ground Water Management District 3, Kansas Water Office, the Kansas Farm Bureau, and the Kansas Corn Growers Association.  No groups or legislators offered testimony in opposition to the bill.  The supporters highlighted the significance of the amendments to famers and livestock owners. They explained, for example, that farmers with multiple wells and integrated water distributions systems could draw from a more optimal well, while choosing not to draw from a well with pressure issues, thus using the same amount of water but in a more efficient manner.

Several supporters, however, voiced minor concerns.  One worried that the bill failed to dictate a sufficient notice process.  Another suggested that the lauded efficiencies of flexible rights could result in an increase in water usage and was troubled that the definition of the WCAs no longer required the area to have conservation needs.

Most of the key components of the initial proposal remained in the final version.  The Senate Committee on Agriculture and Natural Resourced heard testimony on February 14, 2017 and made one significant change.  As initially introduced, SB 46 would have removed the requirement for the adoption of rules and regulations to effectuate and administer the provisions of the WCA statute.  The Senate Committee on Agriculture and Natural Resources amended the bill and restored the requirement to adopt rules and regulations.

The House Committee on Agriculture amended the bill to include a secondary function: altering the administrative remedy for owners of water rights who allege their rights are being impaired by another entity’s water use.  The amendment requires owners to take the new first step to exhaust their administrative remedies before seeking the traditional remedy of a court injunction to stop the offending entity from using water within the owner’s rights.  Specifically, the right or permit owner must submit complaints to the Chief Engineer, who will initiate a two-week investigation during which the parties will have the opportunity to submit relevant information.  The bill requires the investigation to be completed within a year of the date the complaint was received.  The Chief Engineer may extend the investigation for good cause and notify the parties of the additional time needed.  While the investigation is ongoing, the parties may petition the Chief Engineer to issue a temporary order to prevent, limit, or curtail the impairment.

The House amended SB 46 to define many of the terms in the bill.  However, a conference committee created to reach a final version for both houses removed these amendments.  The bill was approved by former Governor Samuel Brownback on April 18, 2017.

Liz Trower