Groundwater law in the states of Kansas Nebraska and Texas

Kansas

The Absolute Ownership Doctrine prevailed in Kansas until 1945 when the state enacted the Kansas Water Appropriation Act (Kansas Statutes Annotated, 2005, §§82a-701, et seq.), adopting the Prior Appropriation Doctrine for groundwater. Persons wanting to divert water since 1945 have had to obtain a permit from the chief engineer of the Division of Water Resources (DWR) before diverting water. The Act allowed people who were using the water on the date the Act became effective to claim 'vested rights'. People who owned water rights by virtue of landownership alone but who were not diverting water lost their rights. From 1945 on, they had to apply for appropriation rights.

Groundwater pumping from the numerous permits granted from 1945 through the 1970s resulted in serious groundwater mining. In response the legislature enacted the Groundwater Management District (GMD) Act. Five GMDs have been established, and they have the power to enact management programmes and recommend regulations to the DWR. These regulations cover matters such as well spacing and overall aquifer withdrawal policy. For example, Southwest Kansas GMD No. 3 has a 'depletion' formula allowing a regulated lowering of the water table. The Equus Beds GMD in central Kansas has adopted 'safe yield'3 regulations. The GMD Act provides that in cases of serious groundwater mining, the chief engineer of the DWR may establish intensive groundwater use control areas (IGUCAs) following a public hearing. It also provides that if the chief engineer establishes an IGUCA, he has extraordinary powers of regulation, including the power to reduce the annual quantity of water rights within the IGUCA.

Some quantity of groundwater in Kansas is connected hydrologically with neighbouring streams. While several states like Wyoming have water right dispute resolution statutes that expressly recognize this interconnection (Wyoming Statutes, 2005, §41-3-916), and some states have defined this interconnection,4 Kansas law is less clear (Peck and Nagel, 1989, pp. 199, 281-300). Yet, the chief engineer has recognized the interconnection in some situations such as in establishing IGUCAs.

Nebraska5

Nebraska uses a hybrid of the Reasonable Use Doctrine and the Correlative Rights Doctrine for groundwater rights. The right to use groundwater in Nebraska comes from ownership of the overlying land. No permit is required to drill wells except in groundwater management areas (GMAs), but owners must register them. A preference statute favours domestic use over all other uses and agricultural use over industrial or manufacturing uses. Statutes also regulate the location of wells with respect to nearby streams and other wells.6 The owner may not use more than a reasonable quantity and may have to share it with others if the groundwater supply is insufficient for all owners. While the Reasonable Use Doctrine generally prohibits the user from using water off the overlying land, Nebraska permits public water suppliers to do so, with compensation to injured overlying landowners, and also permits water use offsite for agricultural uses if it does not adversely affect other users and is deemed in public interest.

Unlike Kansas, which has five special districts devoted exclusively to groundwater management, Nebraska is divided into 23 natural resource districts (NRDs) based on river basin boundaries covering the entire state.7 Each NRD has its own priorities and programmes, covering matters such as erosion prevention, flood prevention and control, water supply, conservation of surface and groundwaters, drainage, recreation and forest management. Under the Nebraska Ground Water Management and Protection Act (Nebraska Revised Statutes, 2005, §§46-701, et seq.), groundwater management is a local rather than a state responsibility. NRDs develop management plans, which must be approved by the state director of the Department of Natural Resources. To protect the quality and quantity of water and to prevent conflicts between users of groundwater and appropriators of surface water, NRDs may establish GMAs (Nebraska Revised Statutes, 2005, §46-712) inside of which they may implement controls (Nebraska Revised Statutes, 2005, §46-739). The Act permits NRDs to regulate and control groundwater in the GMA with well spacing, pumping restrictions, rotation requirements, metering and reduction of irrigated areas.

Legislative amendments to the Act in 2004 have drawn attention to the issues of hydrologically connected surface and groundwaters (Nebraska Revised Statutes, 2005, §§46-703(2), 46-713, 46-715 through 46-718). They require evaluation of 'the expected long-term availability of hydrologically connected water supplies' (Nebraska Revised Statutes, 2005, §46-713) and create the possibility of different types of management, through the development of 'integrated management plans' (Nebraska Revised Statutes, 2005, §46-715), when the groundwater is not connected with surface water. A Nebraska Supreme Court case in 2005 recognized the right of surface water users to sue alluvial groundwater pumpers for damages, if the groundwater pumping causes unreasonable harm (Spear T Ranch v. Knaub, 2005).

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