Tuesday, August 25, 2009

Part 1: Public Interest

In considering the approval or denial of a new water right application, K.S.A. 82a-711 says if a proposed use neither impairs an existing right nor prejudicially and unreasonably affects the public interest, the chief engineer shall approve it so long as it is made in good faith, in proper form and proposes a beneficial use. The only exception is an application for fresh water where other waters are economically and technologically feasible.

The act goes on to say that in determining if the public interest will be affected, the chief engineer shall consider established minimum desirable stream flows, safe yield and recharge rates, the priority of all existing claims to use water, the amount of each existing claim to use water, and all other matters pertaining to such question.

The act finally says that impairment shall include the unreasonable raising or lowering of the static water level, the unreasonable increase or decrease of stream flow, or the unreasonable deterioration of water quality beyond a reasonable economic limit.

An interesting issue regarding impairment is that K.S.A. 82a-711 defines it in terms of the unreasonable raising or lowering of the static water table. While it almost sounds like impairment cannot actually occur during the pumping season (non static conditions) this is not likely the case, as K.S.A. 82a-706b says that no person can prevent any waters of the state from moving to a person having a prior right to the use of the water. This more clearly covers all supply problems – in the pumping season and otherwise.

In reality the local GMD 4 regulation prohibiting new appropriations, adopted by the chief engineer for our district alone, is actually defining the local public interest in regard to new water rights for GMD 4. It is also not hard to see how important public interest is in Kansas water law, and how flexible it can be when “all other matters pertaining to such question” are lawfully defined as part of the public interest.

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