Topeka The state's top water regulator does not have power to reduce a landowner's water rights once a permit has been issued, the Kansas Court of Appeals ruled last week in a decision that could limit the state's ability to conserve water resources in the dwindling Ogallala Aquifer.
However, the court said, the chief engineer of the Division of Water Resources — sometimes known as the state “water czar” because of his near-unilateral authority to approve or deny water permits — may require farm irrigators to install expensive metering equipment on their wells to ensure compliance with the terms of a permit.
“It will be interesting to see if further lawsuits occur because the chief engineer has for years restricted junior water rights during periods of low stream flow when senior rights were impacted adversely,” Rep. Tom Sloan, R-Lawrence, said of the ruling.
And while the ruling involved a permit to draw water out of the Ogallala, not a stream, Sloan said “the concept of what type of control the chief engineer has to protect senior water rights holders from junior production is now seemingly at risk.”
The case involved one of the largest family-owned farming corporations in the state, Clawson Land Partnership. Together with a closely affiliated group, Clawson Farm Partnership, the group operates in several counties in western Kansas and the panhandle areas of Oklahoma and Texas.
Since 1995, the two entities have received more than $11.5 million in federal farm subsidies, according to data compiled by the Environmental Working Group.
In 2009, the Division of Water Resources granted Clawson permits for 10 irrigation wells in Meade County in southwest Kansas, an area hit hard by drought in recent years, and an area that has seen some of the steepest declines in groundwater levels.
In issuing the permits, Chief Engineer David Barfield imposed what Clawson called “draconian” monitoring requirements, and asserted that he would retain jurisdiction over the permit, with authority to reduce the amount of water Clawson would be allowed to pump, if necessary, in order to protect senior water right holders and the public interest.
But the appeals court said the chief engineer has no statutory authority to do that.
Writing for a three-judge panel, Judge Anthony Powell said the chief engineer has “broad statutory authority” to require a monitoring plan. But he said once a permit is issued and finalized, the chief engineer may not go back later and reduce the amount of water appropriated, unless the permit holder abandons the water right by not using it.
“The chief engineer cannot retain jurisdiction on a water right appropriation by merely declaring it,” Powell wrote. “Language in the water appropriation permit granting the chief engineer continuing jurisdiction has no force and effect.”
The appeals court remanded the case back to Meade County District Court for further proceedings consistent with the opinion.