Printable Format82a-701. Definitions. When used in this act, unless the context indicates otherwise, the following words shall have the following meanings:
(a) "Person" shall mean and include a natural person, a partnership, an organization, a corporation, a municipality and any agency of the state or federal government.
(b) "Chief engineer" means the chief engineer of the division of water resources of the Kansas department of agriculture.
(c) "Domestic uses" means the use of water by any person or by a family unit or household for household purposes, or for the watering of livestock, poultry, farm and domestic animals used in operating a farm, and for the irrigation of lands not exceeding a total of two acres in area for the growing of gardens, orchards and lawns.
(d) "Vested right" means the right of a person under a common law or statutory claim to continue the use of water having actually been applied to any beneficial use, including domestic use, on or before June 28, 1945, to the extent of the maximum quantity and rate of diversion for the beneficial use made thereof, and shall include the right to take and use water for beneficial purposes where a person is engaged in the construction of works for the actual application of water to a beneficial use on June 28, 1945, provided such works shall be completed and water is actually applied for such use within a reasonable time thereafter by such person, such person's heirs, successors or assigns. Such a right does not include, however, those common law claims under which a person has not applied water to any beneficial use within the periods of time set out in this subsection.
(e) "Appropriator" means and includes a person who has an appropriation right that has been perfected in conformity with article 7 of chapter 82a of the Kansas Statutes Annotated, and amendments thereto.
(f) "Appropriation right" is a right, acquired under the provisions of article 7 of chapter 82a of the Kansas Statutes Annotated, and amendments thereto, to divert from a definite water supply a specific quantity of water at a specific rate of diversion, provided such water is available in excess of the requirements of all vested rights that relate to such supply and all appropriation rights of earlier date that relate to such supply, and to apply such water to a specific beneficial use or uses in preference to all appropriations right of later date.
(g) "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 which 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.
History: L. 1945, ch. 390, § 1; L. 1957, ch. 539, § 1; L. 1977, ch. 356, § 3; L. 2004, ch. 101, § 141; L. 2009, ch. 65, § 1; July 1.
Law Review and Bar Journal References:
Case in annotations Nos. 7 and 8 below analyzed, 11 K.L.R. 558, 559 to 561 (1963).
Constitutionality of act discussed, "Constitutional and Administrative Law," Glenn E. Opie, 12 K.L.R. 143, 144 (1963).
"Municipal Corporations," Albert B. Martin, 12 K.L.R. 285, 294 (1963).
"Real Property and Future Interests," James K. Logan, 12 K.L.R. 304, 328 (1963).
Modification or abolition of certain property rights under police power of state, Robert L. Guenthner, 15 K.L.R. 346, 362 (1967).
The water depletion deduction in Kansas, 25 K.L.R. 453, 454, 458 (1977).
"Kansas Water Rights: More Recent Developments," Arno Windscheffel, 47 J.B.A.K. 217, 218, 220, 223 (1978).
"Kansas Groundwater Management Districts," John C. Peck, 29 K.L.R. 51, 58, 59 (1980).
"Loss of Water Rights for Non-Use," John C. Peck and Constance Crittenden Owen, 43 K.L.R. 801, 805, 806 (1995).
"Title and Related Considerations in Conveying Kansas Water Rights," John C. Peck, 66 J.K.B.A. No. 9, 38 (1997).
"Assessing the Quality of a Water Right," John C. Peck, 70 J.K.B.A. No. 5, 26 (2001).
"Property Rights in Groundwater - Some Lessons from the Kansas Experience," John C. Peck, XII Kan. J.L. Pub Pol'y No. III, 493 (2003).
"Does Groundwater Management Work?" Burke W. Griggs, 15 Kan. J.L. & Pub. Pol'y, No. 3, 391 (2006).
"Groundwater Management in Kansas: A Brief History and Assessment," John C. Peck, 15 Kan. J.L. & Pub. Pol'y, No. 3, 441 (2006).
"Kansas Groundwater Management Districts: A Lawyer's Perspective," Michael K. Ramsey, 15 Kan. J.L. & Pub. Pol'y, No. 3, 517 (2006).
"Groundwater Management in GMD4: Has It Succeeded?" Wayne Bossert, 15 Kan. J.L. & Pub. Pol'y, No. 3, 541 (2006).
"Does Institutional Groundwater Management Work? Lessons Learned From Groundwater Management District #5," 15 Kan. J.L. & Pub. Pol'y, No. 3, 557 (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).
"Comparative Water Law and Management: The Yellow River Basin in Western China and The State of Kansas in the Western United States," Burke W. Griggs, John C. Peck and Xue Yumpeng, 18 Kan. J. L. & Pub Pol'y, No. 3, 428 (2009).
Attorney General's Opinions:
Appropriation of water for beneficial use; application for permits; duties of chief engineer as to applications. 80-130.
Recordation of certificate of appropriation of water for beneficial use; signature of grantor; acknowledgment. 86-141.
County planning and zoning; waters and water courses; appropriation of water for general use. 91-146.
Designation of intensive groundwater use control areas; initiation of proceedings; duties of chief engineer; findings; powers; home office. 92-97.
Water transfers; review of legislature; amendments to water transfer act. 94-56.
On own initiative, chief engineer may establish intensive groundwater use control area within boundaries of groundwater management district. 2002-24.
Regulation requiring unsanitary water well to be plugged not illegal taking of water right. 2003-29.
Chief engineer for division of water resources is authorized to promulgate regulations regarding intensive groundwater use control areas. 2007-32.
Water well contractor is not obligated to apply for and obtain a permit to appropriate water prior to commencing water well construction. 2012-16.
CASE ANNOTATIONS
1. Cited but not applied in refusing mandatory injunction to remove dams. Heise v. Schulz, 167 Kan. 34, 45, 204 P.2d 706.
2. Various constitutional objections considered and act held valid; discussed; construed. State, ex rel., v. Knapp, 167 Kan. 546, 549, 551, 552, 556, 207 P.2d 440.
3. Purpose of statute mentioned in mandamus action. Artesian Valley Water Conservation Assn. v. Division of Water Resources, 174 Kan. 212, 213, 255 P.2d 1015.
4. Mentioned; granting injunction enjoining appropriation of spring feeding stream not error. Weaver v. Beech Aircraft Corporation, 180 Kan. 224, 229, 303 P.2d 159.
5. Constitutionality of act erroneously determined at unauthorized pretrial conference. City of Hesston v. Smrha, 184 Kan. 223, 224, 229, 231, 336 P.2d 428.
6. Act mentioned; declaratory judgment action to determine water rights of riparian owners. Huber v. Schmidt, 188 Kan. 36, 38, 360 P.2d 854.
7. Various federal and state constitutional objections considered and act held valid; construed; discussed. Williams v. City of Wichita, 190 Kan. 317, 318, 319, 325, 326, 331, 332, 333, 334, 335, 336, 337, 338, 339, 340, 341, 343, 344, 345, 347, 348, 350, 352, 353, 354, 355, 356, 358, 359, 362, 364, 374 P.2d 578.
8. Vested right definition in subsection (d) premised upon beneficial use of water and not upon nonuse. Williams v. City of Wichita, 190 Kan. 317, 334, 335, 336, 345, 346, 354, 356, 358, 374 P.2d 578.
9. Act is constitutional; notice; vested rights must be recognized. Baumann v. Smrha, 145 F. Supp. 617, 618, 619, 621, 625. Affirmed: 352 U.S. 863, 77 S. Ct. 96, 1 L.Ed.2d 73.
10. Federal court will refuse to determine property rights in water until state court makes determination under statute. Williams v. City of Wichita, Kansas, 279 F.2d 375, 377.
11. Mentioned; constitutionality of statute cannot be questioned by trial court without petition or other pleadings before it. Williams v. Smrha, 192 Kan. 473, 389 P.2d 756.
12. Act is constitutional under state and federal constitutions. City of Hesston v. Smrha, 192 Kan. 647, 391 P.2d 93.
13. Mentioned; issues in case held controlled by previous decisions. City of McPherson v. Smrha, 193 Kan. 556, 396 P.2d 269.
14. Mentioned; issues in case held controlled by previous decisions. Williams v. Smrha, 193 Kan. 557, 396 P.2d 270.
15. Section applied; service of process sufficient under K.S.A. 82a-724. Frontier Ditch Co. v. Chief Engineer of Water Resources, 1 Kan. App. 2d 186, 189, 563 P.2d 509.
16. Act cited in upholding 82a728; no denial of equal protection or unlawful taking of property. F. Arther Stone & Sons v. Gibson, 230 Kan. 224, 227, 230, 630 P.2d 1164 (1981).
17. Electoral process used to select Kansas state board of agriculture likely violates one person, one vote; injunction granted. Hellebust v. Brownback, 812 F. Supp. 1136, 1137, 1138 (1992).
18. Cited; statutory system where Kansas board of agriculture is elected by farm organization delegates violates equal protection. Hellebust v. Brownback, 824 F. Supp. 1511, 1514 (1993).
19. Cited in review of Kansas water authority's water transfer order on statutory, jurisdictional and administrative procedure grounds. Water District No. 1 v. Kansas Water Authority, 19 Kan. App. 2d 236, 238, 866 P.2d 1076 (1994).
20. City condemnation of water rights for city water supply; water rights included within definition of "land"; application for change of waters use under K.S.A. 82a-708b. Sullivan v. City of Ulysses, 23 Kan. App. 2d 502, 505, 932 P.2d 456 (1997).
21. 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 Kan. App. 2d 132, 136, 190 P.3d 983 (2008).
22. 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 Kan. 160, 210 P.3d 105 (2009).
23. K.S.A. 82a-718 construed and applied in termination of water right deemed abandoned. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 216 P.3d 170 (2009).
24. 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 Kan. App. 2d 1042, 242 P.3d 1259 (2010).