Loss of Kansas Water Rights for Non-Use

33 Pages Posted: 12 Nov 2012

See all articles by John C. Peck

John C. Peck

University of Kansas - School of Law

Date Written: November 11, 1995

Abstract

Like other Western states, Kansas follows the Prior Appropriation Doctrine for water rights allocation – “first in time, first in right.” Traditionally, these water rights must be used, or they can be declared abandoned. Loss of water rights for non-use is important, because over appropriation of Kansas’ water resources has led to the closure of much of the state to new water permits. Water users must thus make sure that their water rights remain active and legal. This article discusses loss of water rights in Kansas. Several questions are discussed. One question is whether Kansas is an “abandonment” state or a “forfeiture” state. Historically, abandonment has been a doctrine adopted by courts that allows the intent of the water user to be relevant on whether an abandonment has occurred. Forfeiture is the loss of a right for failure to use the right for the period of time, such as three or five years, expressly stated in a statute, the intent of the water right holder being irrelevant. Other issues covered in the article include whether vested rights (water rights pre-dating the Kansas Water Appropriation Act of 1945) are subject to abandonment; whether pre-1945 Act legislation dealing with loss of water rights for non-use is relevant in light of the 1945 Act; when a water right has sufficiently matured to be subject to abandonment; what constitutes “due and sufficient cause” for non-use, which can be a defense to an action by the state to declare a water right abandoned; whether partial abandonments are possible; who has the burden of proof in an abandonment hearing, the state or the water right holder; and whether a water right can be declared abandoned for unauthorized use as compared to non-use. The article attempts to answer these questions and points out several potential problems with current law.

Suggested Citation

Peck, John C., Loss of Kansas Water Rights for Non-Use (November 11, 1995). Kansas Law Review, Vol. 43, No. 801, 1995, Available at SSRN: https://ssrn.com/abstract=2174075

John C. Peck (Contact Author)

University of Kansas - School of Law ( email )

Green Hall
1535 W. 15th Street
Lawrence, KS 66045-7577
United States

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