Editor's Note: This is a statement from the Kansas Department of Agriculture

Topeka -- InDecember the Kansas Court of Appeals issued an order in Clawson v. KansasDepartment of Agriculture.  The caseaddressed an appeal regarding permits which had been approved by the ChiefEngineer. 

In this case, thepermit holders challenged the terms and conditions which were included with thepermits as approved by the Chief Engineer under the Kansas Water AppropriationAct (KWAA).  While the Court of Appealsaffirmed that the Chief Engineer has broad discretion in such permitting, theCourt held that the Chief Engineer did not have thestatutory authority to reduce the quantity of water by including such a term,or including language to state that the Chief Engineer retains jurisdictiononce a permit was issued.  The ruling isdirectly applicable to new permits being issued by the department.

The ChiefEngineer maintains the authority to include reasonable terms and conditions inapproving a permit.  If the permitauthorizes the diversion of a specific quantity of water during the perfectionperiod, the Chief Engineer cannot modify that maximum quantity of water whichis approved under the permit.  This doesnot guarantee that the permit holder will actually perfect the full quantity approvedin the permit.  As always, the quantityperfected in the final water right will be based upon actual diversion duringthe perfection period.

The decision doesnot affect the broad authorities of the Chief Engineer under the KWAA toadminister water rights in circumstances of insufficient supply, to enforce theprovisions of the Act, or authorities to enact Intensive Groundwater UseControl Areas (IGUCAs) or Local Enhanced Management Areas (LEMAs).

This statementwas delayed until the expiration of the 30-day period of appeal.  The Kansas Department of Agriculture fullysupports this decision and ruling by the court.


 

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