A founding principle of Kansas water law is first in time, first in right. That means water rights and permits are assigned a priority date to establish who has first right to water. This allows the Division of Water Resources (DWR) to protect a sometimes scarce water resource for those who established their rights first from those who did so later.
In times of plenty, there may be enough water to satisfy all water rights. However, in times of water scarcity, those who have older, or more senior, water rights are entitled to satisfy those rights before those who have rights more recent, or junior, to them. The procedures for distributing water between users when a more senior right is being impaired are outlined in Kansas statute (K.S.A. 82a-706b) and regulations (K.A.R. 5-4-1).
Fact Sheet - Investigating Impairment Complaints
Impairment Investigation Reports
Impairment Investigations
Impairment Complaint Procedures
First, if a water right holder believes that his or her water right is being impaired by the use of a newer water right, he or she must file a written complaint with the Chief Engineer or his or her authorized representative. That usually means the Water Commissioner over the DWR Field Office that serves the area where the water rights are held by the complainant. Examples of typical impairment complaints include:
- Surface water from a stream is not reaching a senior water right holder because of an upstream diversion by a junior water right;
- A well authorized by a senior water right is not able to pump a sufficient amount of water to satisfy that right because of significant impacts due to pumping at one or more nearby wells authorized by junior water rights.
Second, an investigation of the physical conditions involved is conducted by the Chief Engineer or his or her authorized representative. Sometimes physical conditions are easily ascertained, such as in the case where a junior, upstream water right prevents water from flowing downstream to a senior water right. At other times, particularly in cases involving wells, more extensive investigation may be needed. In these cases, it may be necessary to:
- Evaluate the condition of the complainant's well and pump system to determine if those are functioning properly and if the well is fully penetrating the aquifer;
- Conduct pumping tests to determine aquifer properties;
- Measure drawdown at the complainant's well and at nearby wells to determine the effects of their pumping.
Investigations often involve installation of equipment such as pressure transducers to measure water levels and data loggers to record water level measurements and pumping rates. It may be necessary to take measurements over one or more pumping seasons (years) and to analyze the data to determine whether a right is being impaired.
Determining whether a right is being impaired is done on a case-by-case basis, examining the physical conditions present and the water rights involved. Ultimately, it comes down to whether the complainant with the senior water right can have that right satisfied by regulating junior water rights.
Third, a written investigation report is given to the complainant. The report indicates whether the investigation results substantiate the impairment claim. The complainant will be told if the investigation indicates that the impairment is not occurring, or if regulating junior rights will not provide any relief to the complainant.
Fourth, if the report indicates that regulating junior water rights will provide relief to the complainant, and if the complainant desires such regulation to occur, the complainant must make a written request to secure water to satisfy his or her senior water right.
Fifth, the Chief Engineer or his or her authorized representative,issues written legal notice and directive to other water users whose water use must be regulated so that the complainant's senior right(s) may be satisfied. When the quantity of water needed by the complainant has been delivered to his or her point of diversion (surface water intake, well, dam, etc.), or when the complainant discontinues his or her water use, water right holders whose water use was curtailed are allowed to resume using water. Likewise, if the water source should increase in supply, the Chief Enginner or his or her authorized representative may allow some or all of the regulated junior water rights to resume use if it will not impair the senior water right.
An alternative to regulating junior water rights is for the impaired water right holder and impairing water right holder(s) to work out a mutually acceptable arrangement, such as rotating water use or other acceptable measures. Facilitated mediation is available through the Kansas Water Office to assist individuals seeking to resolve water disputes and achieve mutually acceptable outcomes.