Much Misunderstood Kansas Water Rights Concept

"Use it or lose it" is what most folks call it.  It's the original prior appropriation doctrine concept that basically says if you don't use your water right for some length of time, it becomes subject to abandonment because there is likely someone else waiting in line that can use it.  It also prevents folks from getting water rights and sitting on them - speculatively or otherwise.  The concept does tend to create economy as it leans toward making folks use their water rights.

Of course few concepts in western water law are absolute or totally black and white, and the abandonment statutes in Kansas water law are no different.  As we debate water conservation in Kansas, one state university professor has picked up this oft misunderstood mantra and said:

Unfortunately, Kansas water laws only reinforce these incentives against conservation. They require irrigators to use their water rights or lose them.

From my position, this is far too simple of a statement when Kansas water laws are considerably more sophisticated in this regard.  First, there are 11 reasons for non-use that constitute "due and sufficient cause" - any of these reasons will maintain an unused water right.  Second, a water right need only be used once in every 5 years to maintain it. Third, there are several chances to work with the division of water resources on a specific water right "conservation plan" that will maintain the right while not being used.  Fourth the Legislature has provided (in closed areas) two conservation tools:  1) the Water Rights Conservation Program (WRCP) that provides for non-use (conservation) for just over 20 years; and 2) making non-use a due and sufficent cause for non-use in closed areas so long as the well is maintained.  The truth is there are ample ways to conserve water in Kansas - all water use types including irrigation - while not eliminating the very important underlying concept of truly abandoned water rights.  However, none of these, except for the maintenance of wells in closed areas, allow for a perpetual, non-use status.

The "use it or lose it" concept will be discussed during the Governor's upcoming Water Summit (see July 6 post).  I hope Kansas recognizes the importance of the underlying reasons for the state's abandonment statutes and retains some version of it.  Whenever the water rights in any area must be adjusted due to lack of supply, do we really want to divvy up a reduced water supply among water rights that have actually been abandoned but are still sitting on the books?  This may be a bigger problem later than dealing with these rights today.  Just thinking out loud...