Printable Format82a-718. Abandonment of water rights; notices; hearing; review of action; exceptions. (a) All appropriations of water must be for some beneficial purpose. Every water right of every kind shall be deemed abandoned and shall terminate when without due and sufficient cause no lawful, beneficial use is henceforth made of water under such right for five successive years. Before any water right shall be declared abandoned and terminated the chief engineer shall conduct a hearing thereon. Notice shall be served on the user at least 30 days before the date of the hearing. The determination of the chief engineer pursuant to this section shall be subject to review in accordance with the provisions of K.S.A. 82a-1901, and amendments thereto.
The verified report of the chief engineer or such engineer's authorized representative shall be prima facie evidence of the abandonment and termination of any water right.
(b) Except as provided in subsection (e), when no lawful, beneficial use of water under a water right has been reported for three successive years, the chief engineer shall notify the user, by certified mail, return receipt requested, that: (1) No lawful, beneficial use of the water has been reported for three successive years; (2) if no lawful, beneficial use is made of the water for five successive years, the right may be terminated; and (3) the right will not be terminated if the user shows that for one or more of the five consecutive years the beneficial use of the water was prevented or made unnecessary by circumstances that are due and sufficient cause for nonuse, which circumstances shall be included in the notice.
(c) The provisions of subsection (a) shall not apply to a water right that has not been declared abandoned and terminated before the effective date of this act if the five years of successive nonuse occurred exclusively and entirely before January 1, 1990. However, the provisions of subsection (a) shall apply if the period of five successive years of nonuse began before January 1, 1990, and continued after that date.
(d) Notwithstanding the provisions of subsection (a), an eligible water right enrolled in and continually in compliance with the water rights conservation program, pursuant to K.S.A. 82a-741, and amendments thereto, shall be deemed to have due and sufficient cause for nonuse and shall not be deemed abandoned.
(e) Notwithstanding the provisions of subsection (a), a groundwater right, which has as its local supply an aquifer area that has been closed to new appropriations by rule, regulation or order of the chief engineer shall be deemed to have due and sufficient cause for nonuse and shall not be deemed abandoned.
History: L. 1945, ch. 390, § 19; L. 1957, ch. 539, § 23; L. 1988, ch. 356, § 350; L. 1999, ch. 122, § 1; L. 1999, ch. 149, § 13; L. 2010, ch. 59, § 1; L. 2011, ch. 89, § 26; L. 2012, ch. 6, § 1; July 1.
Revisor's Note:
Section was also amended by L. 1999, ch. 130, § 7, but that version was repealed by L. 1999, ch. 149, § 14.
Law Review and Bar Journal References:
"Legal Aspects of Water Storage in Federal Reservoirs in Kansas," John C. Peck, 32 K.L.R. 785 (1984).
"The Parting of the Waters—The Dispute Between Colorado and Kansas Over the Arkansas River," Mark J. Wagner, 24 W.L.J. 99 (1984).
"Loss of Water Rights for Non-Use," John C. Peck and Constance Crittenden Owen, 43 K.L.R. 801-808, 817-832 (1995).
"Title and Related Considerations in Conveying Kansas Water Rights," John C. Peck, 66 J.K.B.A. No. 9, 38 (1997).
"1999 Legislative Wrap Up," Ron Smith, 68 J.K.B.A. No. 7, 16 (1999).
"Assessing the Quality of a Water Right," John C. Peck, 70 J.K.B.A. No. 5, 26 (2001).
"Groundwater Management in Kansas: A Brief History and Assessment," John C. Peck, 15 Kan. J.L. & Pub. Pol'y, No. 3, 441 (2006).
"Attention Kansas Water Right Holders: Be Nice to Your Neighbors, They're Policing Your Water Rights [Hawley v. Kansas Dep't of Agric., 132 P.3d 870 (Kan. 2005)]," Tyler A. Darnell, 46 W.L.J. 429 (2007).
Attorney General's Opinions:
Regulation requiring unsanitary water well to be plugged not illegal taking of water right. 2003-29.
CASE ANNOTATIONS
1. Notice under subsection (b) not required where nonuse of water rights occurred for more than 30 consecutive years. Hawley v. Kansas Dept. of Agriculture, 281 K. 603, 616, 622, 629, 132 P.3d 870 (2006).
2. Cited; water rights terminated, no beneficial use without due and sufficient cause for five successive years. Frick Farm Properties v. Kansas Dept. of Agriculture, 40 K.A.2d 132, 135, 137, 190 P.3d 983 (2008).
3. Water right principles discussed in challenge to the authority of public wholesale water supply district. Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 K. 160, 210 P.3d 105 (2009).
4. Construed and applied in termination of water right deemed abandoned. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 K. 690, 216 P.3d 170 (2009).
5. Water right holder's failure to maintain and provide water use documentation may support a determination of no due and sufficient cause for nonusage. Nelson v. Kansas Dept. of Agriculture, 44 K.A.2d 1042, 242 P.3d 1259 (2010).
6. Division of water resources has no authority to declare that a water right has been partially abandoned. Wheatland Electric Cooperative v. Polansky, 46 K.A.2d 746, 265 P.3d 1194 (2011).