The Kansas Supreme Court just rendered a ruling on water right abandonments that settled at least one question many people had on this state procedure - who has the burden of proof in determining if due and sufficient cause for non-use has or has not been satisfied - the state or the water right owner?
Case No. 98,750 pitted an irrigation water right owner against the state's division of water resources who had issued an abandonment order on a water right that had been determined by the state to have had no due and sufficient cause for non-use for two periods of time, each exceeding five years, since the water right's issuance in 1970. In Kansas, the law determines that for any 5-year period of non-use without due cause, a water right shall be determined abandoned and forfeitted.
The water right owner argued that the burden of proof as to whether or not due cause for non-use has occurred should be on the agency, and that the agency regulation in this regard improperly imposes this burden of proof on the water right owner. They also argued that decisions not to irrigate were based on adequate rainfall, even though crops not normally irrigated were planted.
The Supreme Court ruling upheld the agency action and now more clearly places the burden of proof on the water right owner to demonstrate that due and sufficient cause(s) prevented them from using the water right or made their use of water unnecessary.