Return to Old Green CLE University of Kansas School of Law April 21, 2017

Transcription

1 Return to Old Green CLE University of Kansas School of Law April 21, 2017 John C. Peck Professor of Law, University of Kansas School of Law Special Counsel, Foulston Siefkin, LLP I. Introduction A. Helpful websites Water Law Update 1. Kansas Division of Water Resources (DWR) general website: 2. For the 5 Groundwater management districts: etc. 3. DWR water right information: 4. County maps: B. Recent and upcoming water law articles: 1. J. Peck, Legal Responses to Drought in Kansas, 62 Kan. L. Rev (2014). 2. T. Adrian & R. Pancratz, Bed, Bank & Beyond: Streambed Regulations in Kansas, 84 J. Kan. B. Assoc (March 2015). 3. J. D. Bielenberg, Comment: When Heavyweights Get Thirsty, Contracts Fall to the Wayside: A Case for Common Contract Principles and Stare Decisis [Kansas v. Nebraska, 135 S.Ct (2015)], 55 Washb. L. J. 759 (2016). 4. John C. Peck, Burke W. Griggs, James R. May, & Irma S. Russell, Evolving Water Law and Management in the U.S., U. Denver Water L. Rev. (2017) (upcoming). C. Water versus water rights -1-

2 D. A typical irrigation water right in Kansas (place of use, type of use, point of diversion, priority date, water right DWR number, annual quantity, rate of diversion) II. Some Local Issues A. Perfection of water rights: place of use for irrigation 1. The application shows the proposed place of use 2. Perfection of the water right requires that water be used on land shown in the permit 3. At the end of the perfection period, DWR conducts a field inspection to determine what land has actually been watered sometimes less acreage than shown in the permit 4. Golf courses: Determining water use on fairways and greens, irregular in shape B. Title considerations: new water rights and changes in water rights 1. Legal background: a. K.S.A. 82a-701(g): defines a water right as a right appurtenant to the land on or in connection with which the right is used, and the right passes with a conveyance of the land by deed, etc. b. K.S.A. 82a-708a: applicant may file for water right to be used on lands not owned by the applicant, but any [water] rights... shall attach to the lands on or in connection with which the water is used and shall remain subject to the control of the owners of the lands.... c. K.S.A. 82a-708b: permits changes in the place of use, type of use, and point of diversion as long as the proposed change would not impair existing rights or adversely affect the public interest; the change application must be signed by all owners of the water right. 2. Example problem No. 1: a. A owns a quarter section irrigated with flood irrigation. A changes from flood irrigation on the entire quarter section to -2-

3 center pivot irrigation in a 125-acre circle. b. A sells a tract off of the now-dry corner of the section to B, without reserving ownership of the water right unto A. B puts a mobile home on the tract. (1) B now owns an undetermined portion of A s water right, perhaps without knowing it. (2) If A wants to make a change in A s water right, A must have B s signature on the change application. 3. Example problem No. 2: a. Farmer owns the NE 1/4 of a section and irrigates that quarter section with a center pivot system. An industry owns the SE 1/4 of the section, and that land sits idle. Farmer recently purchased the SW 1/4 of the section and hopes to irrigate that quarter section. b. Farmer wants to move the current circle in the NE 1/4 southward onto a portion of the SE 1/4 and to lease that portion from the industry; farmer also wants to apply for a new permit for the SW 1/4, but due to the location of a power line easement, farmer wants to have the new circle encroach slightly onto industry s SE 1/4 by 75 feet. c. They agree to this arrangement in a contract, with farmer leasing the subject tracts in the SE 1/4 from the industry. d. DWR approves both applications one for a change in the NE 1/4 water right and the other for the new permit for the SW 1/4 + the sliver of land in the SE 1/4. e. Title implications? (1) DWR considers that irrigating on industry s land is tantamount to a conveyance to the industry of a portion of farmer s two water rights i.e., the industry becomes a co-owner of farmer s water rights. See John C. Peck, Title and Related Considerations in Conveying Kansas Water Rights, 66 J.K.B.A. 38, 40 (Nov. 1997) (2) Therefore, in the contract the parties should agree that the industry will sign quitclaim deeds to convey the industry s -3-

4 C. Impairment of water rights interest in the water rights back to the farmer after any land is irrigated on the industry s property. 1. A case in a Kansas district court in 1972 involved impairment of a groundwater irrigation right by nearby junior irrigation wells and an industrial well. Based on the chief engineer s Section 725 report in that case, the Mitchell County District Court held that [t]here is impairment when plaintiff s authorized diversion rate is decreased by at least 20 per cent in addition to the rate reduction caused by the pumping of plaintiff s irrigation well. Duane File v. Solomon Valley Feedlot, Inc., et al (Dist. Ct. of Mitchell Co., No. 8831, Nov. 29, 1972, Conclusions of Law No. 5) 2. Garetson Bros. v. Am. Warrior, Inc., 51 Kan. App. 2d 370, 347 P.3d 68 (2015): a. Holder of vested right for groundwater for 240 acre-feet annually at 600 g.p.m. sought injunction against neighbor with an appropriation right on the basis of impairment; district court defined impairment using common, ordinary, dictionary meaning of the word, followed the recommendation of the chief engineer appointed under K.S.A. 82a-725 to investigate and make a report, found that the junior well under the appropriation right was impairing the well of the vested right holder, and issued a preliminary injunction. (1) K.S.A. 82a-725: district court can appoint chief engineer as referee (cf special masters appointed in U.S. Supreme Court interstate water cases with the chief engineer s appointment as expert under Section 725) (2) The Court of Appeals upheld the district court and held that the vested right was being impaired when operations of neighboring wells prevented the vested right from pumping 240 acre-feet at 404 g.p.m. during the irrigation season. (3) On remand, on February 1, 2017, the district court issued a permanent injunction. b. Questions: (1) Will a new case be treated the same if it is a contest between two vested right holders or between two -4-

5 appropriation right holders? (2) Relevance of K.S.A. 82a-711's ostensible definition of impairment, which is applicable when making an initial application for an appropriation permit? ( unreasonable raising or lowering of the static water level or the unreasonable increase or decrease of the streamflow or the unreasonable deterioration of the water quality... beyond a reasonable economic limit ) (3) Should the legislature or DWR define impairment? 3. S.B. 46 (2017 Legislative Section): a. K.S.A. 82a-716 and -717a deal with remedies for impairing senior water rights. Section 716 allows a person with a senior water right to sue a common-law claimant without vested rights or a junior appropriator to protect the appropriator s senior water right. b. S.B. 46 would require the allegedly impaired party first to exhaust the remedies available under K.S.A. 82a-717a. Section 717a currently allows an injunction action as well. The amendment to Section 717a would eliminate the permission to file an injunction suit and substitutes a procedure for an administrative action. D. Loss of water for non-use 1. For prior appropriation states, two terms describe loss of water right for non-use: abandonment and forfeiture a. In abandonment states (generally a common law concept), users can potentially defend the claim that there was non-use by showing an intent not to lose the right, despite the non-use. b. In forfeiture states (generally statutory) intent is not important. 2. K.S.A. 82a-718: a water right is deemed abandoned if no use is made of the right for five consecutive years without due and sufficient cause 3. Some recent cases: a. Frick Farm Properties, L.P. v. Kansas Dept. of Agriculture, 289 Kan. 690, 616 P.3d 170 (2009) (court placed the burden of proof on the water right holder to show due and sufficient cause for -5-

6 non-use) b. Nelson v. Kansas Dept. of Agriculture, 44 Kan. App. 2d 1042, 242 P.3d 1259 (Kan. App. 2010) (in dicta, court stated that Kansas is a forfeiture state, not an abandonment state, so intent is irrelevant) c. Wheatland Electric Cooperative, Inc. v. Polansky, 46 Kan. App. 2d 746, 265 P.3d 1194 (2011) (no partial abandonment of water rights) 4. Evaporation and abandonment a. Some situations: (1) Some rights are direct use rights (pumping from groundwater or river and immediate use of the water e.g., irrigation, industrial use, or hydro-power use) (2) Other rights involve storage in a reservoir and no subsequent re-diversion from the reservoir (e.g., lake used for recreation) (3) Other rights involve storage, following by a re-diversion for a use (e.g., municipal lake for municipal use, or golf course lake for irrigation) b. Some law (1) K.S.A. 82a-708a: DWR charges a fee for permit application for direct flow, and for storage when applicable (2) K.A.R (pp): Indirect use means the total of the... average annual potential net evaporation loss from the surface of water... impounded in a reservoir.... (3) K.A.R : Any person intending to store water may make application to the chief engineer... for permit to appropriate water for beneficial use. The application shall... be accompanied by information to show: (a) The area-capacity data of the reservoir.... (4) K.A.R.5-6-3: (a) The... [DWR]... map titled potential net evaporation... is hereby adopted by reference for the purpose of determining potential net -6-

7 c. Example situation: evaporation from a free water surface. (b) The values on the map shall be used... [for]... (1) [c]alculating the maximum annual quantity of water allowed to be appropriated for the storage of surface water in a reservoir... (3) calculating the quantity of evaporation from surface water... that will be used to determine annual water use.... (1) Water user has a perfected water right for irrigating a golf course from lakes on the course (out of range of golfers and not a golf hazard) (2) Golf course uses the water for irrigation for many years, but then finds another water source for irrigation, and fails to irrigate for 5 consecutive years (3) Despite the golf course s possibly having no valid due and sufficient cause for non-use of the irrigation portion of the right in favor of the water right holder, DWR may not declare the right abandoned because in fact there has been an indirect use, evaporation, and under Wheatland, supra, Kansas does not recognize partial abandonment. E. Access to the point of diversion and place of use 1. For the application form, see source /dwr-water-appropriation-forms/1_100.pdf?sfvrsn=10 2. K.S.A. 82a-708a: a person may apply for a permit to appropriate water to use water on the lands of another 3. K.S.A. 82a-709: contents of application: water source, rate of diversion and annual quantity, type of use, location of point of diversion (POD) and place of use, for municipal use the present and future population of the city, and a (g) sworn statement or evidence of legal access to or control of the point of diversion from the landowner, or the landowner s authorized representative. a. K.A.R a. Legal Access. If the chief engineer is aware, or becomes aware, that the applicant does not have legal access to the point of diversion or the place of use, before an application of any of the following can approved by the chief engineer, the applicant -7-

8 shall demonstrate that the applicant has legal access to the... proposed place of use before the approval of the application. b. Two fact situations: (1) An applicant does not have legal access to the point of diversion, but nevertheless the applicant files an application that contains a sworn statement that it has legal access, and DWR grants the permit. (2) An applicant files an application that covers land owned by applicant and also, unbeknownst to the neighbor, some land owned by the neighbor, and DWR grants the permit. (3) What is or should be DWR s response when it learns about these situations? III. Two Proposed Water Diversions in Kansas A. Introduction: The law of large water diversions 1. My terminology: a. diversion : a movement of water from a stream or from groundwater b. change : an altering of the type of use, place of use, or point of diversion under K.S.A. 82a-708b c. transfer : a change in ownership d. Water Transfer Act transfer : movement of at least 35 acre-feet of water 35 or more miles 2. Movements of water prior to the 1983 Water Transfer Act, K.S.A. 82a-1501, et seq.: a. No special rules b. Chief engineer would grant or deny application for permit or for change according to standards in K.S.A. 82a-711: cannot impair other water rights or adversely affect the public interest. 3. The Original Water Transfer Act,

9 a. Transfer = movement of 1,000 acre-feet or more of water 10 miles or more. b. Panel: chief engineer of DWR (chair), director of KWO, and secretary of KDHE c. After a hearing, the Panel decision would go to Kansas Water Authority, and if the Authority approves, then to the legislature, which could disapprove d. Decisions of the panel or Authority could be appealed to the district court, and from the district court to the appellate courts 4. Kansas Administrative Procedure Act, 1984 a. KAPA makes agency decisions subject to KAPA if a statute so provides b. In 1989, the legislature subjected the Water Transfer Act to KAPA Amendments to the Water Transfer Act a. Transfer = movement of 35 acre-feet or more of water 35 miles or more b. Allows non-party participants to participate at the hearing, but only intervening parties can appeal (parties have to share cost of proceedings) c. Presiding officer of hearing, an independent person knowledgeable about water law issues and hearing procedures, issues an initial order. d. Hearing panel, the agency head under KAPA reviews the initial order and issues a final order. e. The Panel s final order is subject to review under the Kansas Judicial Review Act. f. No longer may the legislature disapprove the transfer under the Transfer Act. 6. The one Water Transfer under the Act (original version): Water Dist. No. -9-

10 1 v. Kan. Water Auth., 19 Kan. App. 2d 236, 866 P.2d 1076 (1994) (court approved transfer under original Act, the transfer to move water from the Missouri River to the Water One treatment plant in Wyandotte County; court overruled Water Authority s attempt to impose stricter conservation plan guidelines than required by the Kansas Water Office) B. The Hays/Russell proposed transfer 1. The proposal a. In 1995 Hays purchased a 7,000 acre ranch along with appurtenant irrigation water rights in Edwards County, 68 miles away b. In June 2015 Hays filed an application to change the use from irrigation to municipal use. c. In January 2016 Hays and Russell filed a Water Transfer Act application to move the water from the ranch to the city 2. Current situation: For a summary, a time line, a list of and access to all documents filed to date, and some next steps, see ge-applications/hays-change-and-water-transfer C. The Missouri River Aqueduct proposal 1. History: 1970s and 1980s a. U.S. Dept. of Commerce Six-State High Plains/Ogallala Aquifer Regional Resources Study (1982) b. John C. Peck, Legal Constraints on Diverting Water from Eastern Kansas to Western Kansas, 30 Kan. L. Rev.159 (1982) 2. Current proposal a. Source: Southwest Kansas GMD No. 3: see ee-presentation-november / b. The Governor s 50 year Plan, Additional Sources of Supply: (1) Review opportunities to increase utilization of the Missouri River to meet Kansas needs while recognizing -10-

11 and protecting the existing users. (2) Communicate and collaborate with neighboring states on potential water transfers. c. Current situation: KWO proposal to 2016 Kansas Legislature for further studies IV. Climate Change, Global Warming, Potential Effects on Water Resources A. In general: Some say that global warming is a real threat and is caused by humans; others dispute this assertion 1. American Water Resources Association, IMPACT magazine (Jan. 2017): We re now in the era of Anthropocene, an epoch when humans have direct impact on the atmosphere by the release of greenhouses gases. 2. National Geographic Magazine, Cool It. The Climate Issue (Nov. 2015) a. Climate change is at the top of the mind for some people, while some deny climate change is happening (25% of Americans). b. This magazine issue describes efforts, especially by Germany, to reduce carbon emissions, and the potential worldwide effects of climate change: warming water, crop changes, high heat, wild weather, and health risks. 3. National Geographic Magazine, 7 Things You Need to Know about Climate Change, (April 2017): (1) The world is warming; (2) It s because of us; (3) We re sure (more than 9 out of 10 climate scientists agree that carbon emission cause global warming); (4) Ice is melting fast; (5) Weather is getting intense; (6) Wildlife is already hurting; and (7) We can do something about it. 4. Contrary views: opposing_the_mainstream_scientific_assessment_of_global_warming B. Defense Department: 1. View/Article/ (Global Warming has security implications: poverty, social tensions, environmental degradation, ineffectual leadership, and weak political institutions that threaten stability) -11-

12 2. #VfhY1.7u6Gqg (sea level rise ranks highest on the list of threats) 3. ge-sea-level-rise-defense-department-military/ (fires and sea level rise will threaten military installations) C. Responses by states and industries: 1. Builders putting emergency generators in top floors of new sky scrapers in case of loss of power due to flooding. (also in Kansas City Star, Jan. 27, 2017, p. 7A.) 2. Miami installing pumps and raising roads. each/article html D. Presidential responses: 1. Bush I, 1992 ( Though more engaged with the issue of global warming than his predecessor in the White House, George H.W. Bush proved a disappointment to many environmentalists. However, Bush s actions against global warming nonetheless paid important dividends. on-global-warming/ 2. Clinton administration: WH/SOTU99/ climate.html (various initiatives such as tax incentives, R&D funding, and diplomacy) 3. Bush II administration, 2008: a. observer b. 4/AR html -12-

13 4. Obama administration, 2015: al-warming-science-donald-trump 5. Trump administration?? a. Trump: Nobody really knows if climate change is real... but he s open-minded. 16/12/11/trump-says-nobody-really-knows-if-climate-change-is-rea l/?utm_term=.359ea1a72a39 b. Trump orders EPA to cut climate change from website: USKBN15906G c. Trump s EPA chief Scott Pruitt: Climate change is no hoax. d. Trump Signs Executive Order Unwinding Obama Climate Policies ( der-climate-change.html?_r=0) E. Variable weather patterns, more floods and droughts? F. Is California drought over? Different views: owing-rivers-deep-snowpack-stunning-image-space-shows-california-s-d rought-truly-rain-predicted.html 3. California has not historically regulated groundwater pumping, leaving it up to the courts under the correlative rights doctrine 4. In an effort to achieve groundwater sustainability, the California -13-

14 legislature has enacted statutes on groundwater that now enable the state to adjudicate groundwater withdrawals and to authorize injunctions that could involve limiting or reducing pumping G. Migration of people and animals? 1. Mennonite Farmers Prepare to Leave Mexico, and Competition for Water, NY Times, November 17, 2015, p. A6 ( dom.html (animals going to dramatic lengths to cope) 3. THE WATER KNIFE, Paolo Bacigalupi (2015) (migration of people from Texas to other states) H. Kansas Hypothetical: A Long-term drought 1. State drought response laws: See Peck article on drought in Kansas, at pp , mentioned above in Section I.B.1., for detailed description of statutes and regulations on drought, assigning powers and tasks to various entities: a. KWO, counties and municipalities, the governor, boards of education, soil conservation districts, insurance companies, DWR b. The governor is responsible for meeting the dangers to the state and people presented by disasters ; is authorized to declare a proclamation that a state of drought exists in specific areas or communities or statewide; and is required to effect implementation of drought contingency plans contained in state approved conservation plans. K.S.A c. For a good, informational website on Kansas drought, see

15 2. Groundwater: a. Drought affects groundwater levels: see, e.g., b. Legal effects on water right holders (1) Local impairment claims (a) Duane File v. Solomon Valley Feedlot, Inc., et al (Dist. Ct. of Mitchell Co., No. 8831, Nov. 29, 1972, Conclusions of Law No. 5) (See Section II.C.1., above) (b) Garetson Bros. v. Am. Warrior, Inc., 51 Kan. App. 2d 370, 347 P.3d 68 (2015). (See Section II.C.2., above) (2) Regional impairment claims? Will they be filed? (3) Intensive Groundwater Use Control Areas (IGUCAs), Local Enhanced Management Areas (LEMAs), and Water Conservation Areas (WCAs) 3. Surface water a. Assume a very bad, long-term (years long) drought in which reservoirs lose storage water and rivers and streams run very low b. In theory, prior appropriation law takes effect: (1) Administration of junior water rights: generally no preferences among types of uses (a) K.S.A. 82a-707 (b): priority date, not the purpose of use, determines the right to divert

16 water at any time when the supply is not sufficient to satisfy all water rights (b) Only if water rights have the same priority date will the preference list be applicable: domestic, municipal, irrigation, industrial, recreational, and water power (2) Cities versus irrigators and other users (a) Pre-Appropriation Act case: Emporia v. Soden, 25 Kan. 588 (1881) (court held that city could not pump water from the alluvial groundwater of the Cottonwood River to the detriment of an existing mill on the Cottonwood river, despite the claim of the city that it needed water in emergency situations to prevent spread of fires) (b) Cities with senior water rights: First in time prevails, so city prevails (c) Cities with junior water rights: First in time prevails, so cities must give way to more senior rights i) Dry-year agreements with other right holders ii) Condemnation of water rights c. Could the Kansas governor under the police power simply take water from some users for delivery to preferred users, e.g., from irrigators and industries in favor of cities? (1) In 2015 California Governor Jerry Brown issued an executive order that authorized him to commandeer or utilized any private property... deemed by him necessary in carrying out the responsibilities hereby vested in him... and the state shall pay the reasonable value thereof. -16-

17 (2) The first half of the 20 th century was marked by two world wars... and... government seizures of private companies... were not uncommon. Broadly tolerated and sometimes specifically authorized by Congress, takeovers were regarded as a matter of public necessity in a time of war. * * * And while their legal authority remained vague, successive administrations seized electric plants, water supplies, dams.... Allen Pusey, Precedents: Truman Seizes Steel Mills, 103 ABAJ No. 4, at p. 72 (April 2017). (3) K.S.A attempts to reduce the risk of undue burdens on private property by government actions. (4) Kansas statutes and cases that support the power to reduce water rights without compensation: (a) Williams v. City of Wichita, 374 P.2d 578 (1962) (Water Appropriation Act held constitutional even though it took unused water rights existing under the Common Law) (b) Water Appropriation Act: DWR imposition of conservation plans on existing water rights (c) GMD Act and IGUCAs (d) Walnut Creek IGUCA, 1992 (DWR ordered large reductions in some water rights upstream from the Cheyenne Bottoms) -17-