December 30, 2013

Category: Arkansas Environmental, Energy, and Water Law

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Author: Walter G. Wright

The Chief Engineer of the Kansas Department of Agriculture's Division of Water Resources ("KDA") is provided the statutory authority to enforce and administer the laws of Kansas pertaining to the beneficial use of water. The KDA's Chief Engineer is provided the authority to control, conserve, regulate, allot and aid in the distribution of the water resources of the state for the benefit and beneficial use of all in accordance with the rights of priority of appropriation. See K.S.A. 82a-706.

The Court of Appeals in Kansas in Clawson v. The State of Kansas, Department of Agriculture, Division of Water Resources considered the limits that exist on the exercise of the state agency's power by the Chief Engineer of KDA over water. The opinion states that Mary Clawson and the Clawson Law Partnership (collectively "Clawson") obtained ten approvals and permits from the Chief Engineer at KDA to appropriate water. Further, under the terms and conditions of the water appropriation permits, the Chief Engineer imposed a specific monitoring plan and retained jurisdiction to reduce the approved rates of diversion and the quantities of the water rights authorized to be perfected as may be deemed in the public interest.

Clawson challenged the referenced terms and conditions in District Court. The District Court upheld the requirements regarding the monitoring plan but found the Chief Engineer could not retain jurisdiction to reduce the rates of diversion and the quantities of the water rights authorized to be perfected after the issuance of the permits.

KDA appealed the District Court's finding that the Chief Engineer could not retain jurisdiction to make reductions in the approved rates of diversion and the quantities of the water rights authorized to be perfected. Clawson cross appealed, arguing the monitoring plan, which requires Clawson to install electronic rate loggers is unduly burdensome and opposes.

The Court of Appeals found that the Chief Engineer cannot retain jurisdiction once KDA issued a final order. It also found that the Chief Engineer's monitoring plan was within his statutory authority. However, the Court of Appeals also found there was insufficient evidence in the record to determine whether the monitoring plan was unreasonable. The opinion's analysis includes a review of Kansas water law and the statutory/regulatory provisions that have been enacted to address beneficial water use issues.

A copy of the opinion can be downloaded below.

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