Kansas Court Rules that Water Appropriation Permits are not Subject to Continuing Jurisdiction of Chief Engineer

December 23, 2013 | Kristine Tidgren

Water Czar Doesn't Have Continuing Jurisdiction Over Permits

Overview

In Clawson v. State, No. 108-426, 2013 Kan. App. LEXIS 105(Kan. Ct. App. Dec. 20, 2013), the Kansas Court of Appeals determined that Kansas law does not allow the Chief Engineer of the Kansas Department of Agriculture's Division of Water Resources to reconsider an approval once a water appropriation permit has been issued. The court found that to allow the Chief Engineer continuing jurisdiction over such a permit—so as to allow him to reduce the rate of diversion and quantity of water rights—would render such a permit meaningless.

Facts of the Case

The case arose because a landowner applied to the Chief Engineer for 10 new appropriations of groundwater. The Chief Engineer dismissed the permit applications, finding that the additional water permits would impair existing water rights. On review, nearly seven years after the first application was made, the Secretary of Agriculture ordered a new Chief Engineer to approve the applications and issue the permits.

The Chief Engineer issued the permits, with the following limitations: (1) a monitoring plan was imposed requiring electronic rate loggers that recorded the pumping rate every 30 minutes throughout the irrigation season; (2) the Chief Engineer reserved authority to review, modify, and expand the required monitoring plan as necessary; and (3) the Chief Engineer retained jurisdiction to make “reasonable reductions in the approved rate of diversion and quantity authorized to be perfected,” and other changes deemed to be in the public interest.

The landowner sought judicial review, challenging (1) the quantity of water allowed under the permits, (2) the monitoring plan, and (3) the Chief Engineer's retention of jurisdiction over the permits.  On review, the district held that the agency action was valid in all respects, but that the Chief Engineer could not retain jurisdiction. The agency appealed the portion of the order denying continuing jurisdiction, and the landowner cross-appealed, arguing that the Chief Engineer disregarded the Secretary's order by imposing a "draconian monitoring plan” that was “nothing less than an end-run around the Secretary's Order and an effective denial of the Permit."

Court’s Analysis

On review, the Court of Appeals affirmed the holding that the Chief Engineer did not retain jurisdiction. The court stated that while the Chief Engineer would be rightfully concerned that the landowner’s use might impair existing water users, the Kansas Water Appropriation Act, K.S.A. 82a-701 et seq., did not give the Chief Engineer carte blanche authority to alter water appropriations. In fact, the court held that the Chief Engineer did not have the authority to reevaluate and reconsider an approval once a permit had been issued.  The court found it important that the landowners invested significant amounts of money to re-perfect existing water rights. If the Chief Engineer could reduce the rate of diversion and the quantity of the water rights authorized to be perfected, the permit would be meaningless.  Interestingly, the court surmised that the Chief Engineer's desire to retain jurisdiction arose because of his disagreement with the Secretary’s order directing him to approve the applications in the first place.

Concerning the issue of the monitoring plan, the court agreed that the Chief Engineer acted within his authority in imposing a monitoring plan. The court ruled, however, that there was insufficient evidence in the record from which it could determine whether the plan was reasonable. The landowner contended that a reasonable owner could not incur approximately $2,000,000 to drill and equip 10 irrigation wells when the Chief Engineer made it clear that he intended to “shut down the wells and revoke the permits.”

Ultimately, the court instructed the district court to remand the case to the agency to give the landowner an opportunity to present evidence regarding the alleged unreasonableness of the monitoring plan.  The court stated that if the landowner demonstrated a sufficient factual basis for the claim that the monitoring plan amounted to an "effective denial of the Permit," then the monitoring plan might be unreasonable.