Seniority of Water Rights in Kansas

Kansas is a prior appropriation state as far as water law goes, which means basically that the first in time is the first in right.  This system of water appropriation also means that every water right is in a seniority system.  It is only when the supply becomes insufficient to satisfy all the uses that the seniority system comes into play seriously.

Many people are confused a bit about prior appropriation and water right seniority.  Most think that a low number is a senior water right - just because it has a low number.

In Kansas, seniority is more accurately relative to the area of concern (where the supply is insufficient) and to all the water rights in that specific area of concern. 

The picture provided is two different cases where seniority would come into play in Kansas.  Area 1 is representative of an 8,042 acre area  (2-mile radial area) with 11 water rights included - each for 100 AF - and each with its priority number.  The priority number actually relates to the date and time that the application was received in the office of the chief engineer.  The number itself, for example water right number 5,852 shown, is the 5,852nd water right filed in the state under the 1945 Kansas Water Appropriation Act.  It may have reached DWR's office on July 22, 1956 at 2:45 P.M.

If DWR (or in some cases it could be the court) decides that 300 AF is all the supply that can be used in this area, then water rights 3,276; 3,499 and 5,852 are the senior rights in this specific case.  If the decision is that 400 AF can be withdrawn, then water right 7,934 becomes a senior right as well.  It is entirely possible that water right 3,275 in a different area ends up being the most junior right.  Again, its all relative to the specific circumstances in the designated area and the water rights included.

Area 2 is a section of land with only two water rights.  If these two wells impair each other, the senior well in this case is 31,234.

Just to be a tad more complete, Kansas also has Vested Water Rights, which are all the recognized water uses that pre-existed the Kansas Water Appropriation Act.  Vested rights all have the same priority, and all are senior to every appropriation right - even water right number 1.

There you have it - a cursory look at the meaning of seniority in the Kansas priority system.  For more information, visit the DWR website here.  There is not a specific rendering of this issue on the DWR website, but these concepts are embodied in the Kansas Water Appropriation Act.  You may want to talk to a DWR representative for additional insights.

Use of Freshwater for Oil & Gas in Kansas

Wow, I find of late that I actually misspoke in an earlier post on this issue.  Recall that on February 2, 2011 I said in my coverage of hydraulic fracking in Kansas:  "...the state is not allowed to approve any water right for fresh water when other, lesser quality waters are available to be used. Presumably this would find very small (if any) amounts of fresh water being used for fracking, or any other oil & gas purpose, in Kansas."

Turns out this is not exactly the case.  KSA 82a-711 actually says:  "...except that the chief engineer shall not approve any application submitted [for a water right] for the proposed use of freshwater in any case where other waters are available for such use and the use thereof is technologically and economically feasible."  And this same language shows up in KSA 82a-727 dealing with approvals by the chief engineer of temporary permits - most often used by the oil & gas industry for well drilling purposes.  So, seems the operable words are "technologically and economically feasible".

I then did a quick search of my temporary and term permits for their water sources.  (Yeah, I know, I should have done this back in February!)  From January 1, 2011 to September 21, 2011, within GMD 4, I found 32 oil & gas permits issued.  Thirty-one were for groundwater and one was for surface water.  All were for freshwater.  I didn't expect to see this.  I called the division of water resources to ask:  Had they issued a blanket ruling that Dakota Aquifer waters (and all other waters below the Ogallala Aquifer) were too difficult to use?; or, Were they not aware of the lesser quality water requirement?; or, What?  Moreover, the small number of permits issued thus far in 2011 in our area has me wondering what percentage of drilling activity is even bothering to secure the water rights required by law.  I'll look into this later (and likely blog about it as well).

Anyway, I don't think the industry can argue that Dakota, Cheyenne, Cedar Hills or other brackish waters below the Ogallala are technologically out of reach - as they drill through them routinely on every well completion.  This only leaves the possibility of these waters being economically challenging.  Comforting, isn't it?  The good news is all 32 permits were for drilling wells - a relatively small amount of water.  There were no water flood projects or the kind of operations that use huge quantities of water over many years.
 
Turns out the state was aware of the rule, and indicated that it was an aspect of their regulatory duties that needed, and was slated for, more attention and broader discussions in the near future.  And they promised my question and comments would be included in these discussions.  While use of freshwater in some oil and gas operations is probably justified, we just need to have the smarts to determine which operations are justified and which are not, and then the guts to enforce this law more closely.  My prediction is that the oil and gas industry in Kansas may want to start preparing to better justify their water use needs and start planning on the use of more brackish waters.

New Kansas Supreme Court Ruling

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.

Part 2: Vested Water Rights

What is a “Vested Water Right”? On June 28, 1945 the Kansas Water Appropriation Act became effective. It made the state of Kansas an “Appropriation” state rather than a “Riparian” state as far as basic water doctrine goes. After enactment, all water rights in Kansas (groundwater or surface water) were considered in a priority system by date of application. The first new (post June 28, 1945) water right applied for got appropriation right # 1.


It was all the existing (pre June 28, 1945) water uses needing to be considered by the new appropriation system that became the “Vested Water Rights”. In essence, all vested water rights in Kansas represent uses that were ongoing (or specifically under development) on June 28, 1945. All vested water rights are “senior” to (pre-date) all appropriation rights, but they all have the same priority date among themselves. In other words, there is no seniority system for vested water rights in Kansas.

The legislature closed the filing process for claiming vested water rights on July 1, 1980. Now, only domestic water rights remain un-quantified (not accounted for).

The last Vested Water Right tidbit is: KSA 82a-703 says: Nothing contained in this act shall impair the vested water right of any person except for nonuse. Vested rights seem pretty secure.