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Troubled waters

By John Schlageck
Kansas Farm Bureau

Since when has it become the method of conducting business where a public water group applies for a water right with the Division of Water Resources; attempts to take the land, by eminent domain, in order to access that water; and then does so, all without informing the landowners up front of such intentions?

Seems there have been several instances where the process for acquiring such a water right has been manipulated and misused in this manner--one that dramatically violates the private property rights of landowners across Kansas.

"We are aware of applications for permits to appropriate water which have been filed with the Division of Water Resources by municipal water users with no knowledge or consent on the part of the owner of the land that constitutes the basis of the application," says Kent Askren, Kansas Farm Bureau water specialist. "These applications have been held by the division when the record clearly indicates no landowner consent had been given--and even approved--again without any showing of legal access to the property in question."

Landowners, farmers and ranchers understand and support the principle water is owned by the state and this right to use this water is granted through the appropriations process. They know water belongs to Kansas citizens. These entrepreneurs also understand their right and potential to develop their property free from actions by those who would reduce the property value or impede its future development.

Water is very much a part of every farming operation, says Sen. Janis Lee, 36th District. Lee's family has farmed near Kensington in Smith County for generations. She also serves on the Senate committee on Natural Resources.

"Without the availability of water, farming operations will be forced to change dramatically or in some cases, cease to operate," Lee says. "It's important every water right holder knows well in advance what someone else has in mind for their water rights and property."

Such fundamental rights could be directly compromised when entities are permitted to make application for permits to take water while using the land of others as the basis for their application. This is especially true when there is not demonstration of consent or other legal access prior to assigning priority or approval of these applications.

Kansas law allows for any person to apply for a permit to appropriate water upon the land of another. However, it also requires such applications be made in good faith and set the initial procedure for processing the application.

"These statutes were never intended to become a tool to allow parties who have neither consent nor control to gain a foothold in developing a water right on property they have legal access to," Askren explains.

Further, a standard condition attached to all permits to appropriate water reads, "this permit does not....authorize entry upon or injury to public or private property.

"It seems disingenuous at best to provide a permit in this manner when evidence is clear and the chief engineer should be fully aware the applicant has no legal access to the property," Askren says.

There is a solution to this situation. It's a simple, easy procedure. It will also provide adequate protection for Kansas property owners.

What is needed, according to Askren is a minor adjustment to the current water law. This would require the chief engineer to verify when any applicant has either consent of the landowner or control of the property in question prior to processing the application or assigning any priority. If proof cannot be made in 30 days, then the chief engineer would be required to dismiss the application.

Landowners, farmers, ranchers and others are willing to address the needs of rural and municipal water users while protecting their own property interests across Kansas.

John Schlageck is a leading commentator on agriculture and rural Kansas. Born and raised on a diversified farm in northwestern Kansas, his writing reflects a lifetime of experience, knowledge and passion.

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