The legal problem Is compensation required when the state restricts groundwater pumping

Like most states in western USA, Kansas follows the Prior Appropriation Doctrine for both surface and groundwaters (Waters and Water Rights, 1991 and 2004 Cumulative Supplement, v. 6; Kansas Statutes Annotated, 2005, §§82a-701, et seq.). When Kansas adopted that doctrine in 1945, replacing the Absolute Ownership Doctrine, it continued to recognize the rights then used, as 'vested rights', but eliminated unused rights without compensating the holders of those rights. Landowners not using their underlying groundwater challenged the constitutionality of the Act on the basis of an 'unconstitutional taking' for which compensation should be due from the state. The basis of such a constitutional challenge was that the US Constitution's Fifth Amendment requires the government to compensate people when it takes their property. They claimed that by eliminating their unused water rights, the state had 'taken' their water rights from them. They argued that even an unused water right was a property right. The courts, however, have upheld the Act against such challenges (Williams v. City of Wichita, 1962).

Another potential challenge arises when the state does not eliminate water rights entirely, but merely restricts groundwater pumping by water right holders to levels below their permitted annual quantities. Extensive regulatory reduction of pumping is arguably tantamount to a 'taking' of a property right even though the government is not technically acquiring title to the water right. While American water rights have generally been viewed as property rights, the original version of the Kansas Water Appropriation Act did not expressly define a water right as a property right. The legislature amended the Act in 1957 to define a water right to be a property right:

[A] water right is a 'real property right appurtenant to and severable from the land . . . [and it] . . . passes . . . with a conveyance of the land by deed, lease, mortgage, will, or other voluntary disposal, or by inheritance'.

(Kansas Statutes Annotated, 2005, §§82a-701 (g) )

The proliferation of irrigation water rights in Kansas from the 1950s through the 1970s led to a serious groundwater mining problem. To slow pumping in the Walnut Creek Basin in west-central Kansas and thereby to protect the Cheyenne Bottoms Wildlife Preserve (an important migratory bird stopover point) from the pumping by the basin's more than 800 irrigation water users, the chief engineer held hearings in 1990 to establish an IGUCA. Following several weeks of hearings and testimony, the chief engineer issued an IGUCA order that established an IGUCA and recognized the interconnection of the groundwater and the Arkansas River and its tributary, the Walnut Creek. After finding that the annual basinwide 'safe yield' (sustainability10) was 27,753,792 m3 and that irrigators and others were pumping almost twice that quantity, the chief engineer instituted 'safe yield' in the river basin and along with it substantial reductions in irrigation pumping. The order divided the water rights into two large groups - 'senior rights' and 'junior rights' - and cut back annual quantities for both groups, but much more significantly for junior rights. The irrigators appealed the order, claiming an unconstitutional taking of property, but eventually dropped their appeal. Thus, Kansas courts have still not decided the 'takings' issue.

Whether such governmentally imposed curtailments are constitutional is an open question in Kansas. Generally in the USA, the western states by court decision are moving away from the view that a water right is an immutable property right to be treated just like a land property right.11 California, for example, has upheld the 'public trust doctrine' for water rights (National Audubon Society v. Superior Court of Alpine County, 1983), meaning that the state is viewed as holding the water resource as trustee for the people and as not having the power to grant unrestricted, unchangeable rights to its water users. The state has not only the power but also the duty to periodically review water rights in light of current conditions, not conditions existing at the time of permit issuance. States have also recognized that water use quantities may be curtailed when waste is occurring.12 Of course, the nature of the Prior Appropriation Doctrine itself requires the recognition that junior rights must be curtailed when senior rights are impaired (i.e. injured or damaged).13 But in Kansas, impairment is usually claimed in cases of alleged direct impairment (lowering of the water table or reduction of the pump rate) by the pumping of one well that adversely affects another, not by a general lowering of the water table caused by general aquifer pumping throughout the area. This view, then, might prohibit a senior well owner, whose water table is dropping, from enjoining other junior irrigators in the region where pumping generally causes areawide water table declines but does not directly impair the senior well owner's water right.

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