Brief⁽¹⁾

H.B. 2404 would amend a section of law with respect to the abandonment and termination of water rights. The bill would deem a water right to be abandoned and terminated when without due and sufficient cause no lawful, beneficial use of the water right has been made for five successive years (current law is three successive years). These provisions would not apply to a water right that had not been declared abandoned and terminated before the effective date of the bill if the five years of successive nonuse occurred entirely before January 1, 1990. The provisions would apply if the period of five successive years of nonuse began before January 1, 1990, and continued after that date.

In addition, the bill would require that when no lawful beneficial use of water under a water right has been reported for three successive years, the Chief Engineer of the Division of Water Resources (Kansas Department of Agriculture) notify the user by certified mail, return receipt requested, that:

no lawful beneficial use of the water under a water right has been reported for three successive years;

if no lawful, beneficial use is made of the water for five successive years, the right may be terminated; and

the right will not be terminated if the user shows that for one or more of the five consecutive years the beneficial use of the water was prevented or made unnecessary by circumstances that are due and sufficient cause for nonuse.

In addition, the bill would require the Kansas Water Office, on behalf of the state, to enter into negotiations, agreements, and contracts with the federal government regarding water rights appurtenant to federal property located in Johnson County (water right numbers 37 and 38). These negotiations would occur when the Kansas Water Office deems them to be necessary for the achievement of the policies of the state with respect to water resources. The bill would require that any agreement or contract be binding only upon adoption of a concurrent resolution by the Legislature approving any such agreement or contract.

The bill also would require the Kansas Water Office, on behalf of the state, to accept and hold in trust any water rights acquired from the federal government until the Legislature determines the appropriate state agency and procedures for disposition of the water rights. Until legislative determination:

• the Kansas Water Office could not assign, transfer, or otherwise dispose of these water rights;



• all contractual agreements associated with these water rights would remain in effect and the abandonment and termination of water rights statute would not apply to these rights; and



• the Kansas Water Office would make all annual payments associated with the water rights to the appropriate water assurance district.

Background

A representative of the Kansas Department of Agriculture and the Kansas Farm Bureau appeared in support of the original bill. The spokesperson for the Department stated that it was the agency's belief that the bill was an attempt to ensure that water right holders understand the severe consequences that can occur if their water right is deemed susceptible to an abandonment action. The conferee noted that the agency attempts to notify the water right holders when their file and situation comes to the agency's attention. There were no opponents to the bill.

The House Committee on Environment made amendments to the bill to extend the general time period for abandonment from three to five years; to require notice to water right users be given by certified mail; and to clarify that the water in question is that water held under a water right.

The Senate Committee on Energy and Natural Resources amended the bill to:

• clarify the point in time when the process of water rights abandonment and termination could occur (if the nonuse occurred entirely before July 1, 1990, no process could occur);



• require the Kansas Water Office to negotiate for certain water rights now held by the federal government;



• require that the Legislature approve any agreement or contract with the federal government for acquisition of certain water rights by approval of a concurrent resolution;



• require legislative determination for the disposition of certain water rights;



• state that certain water rights are not subject to the abandonment statute; and



• require that the Kansas Water Office make appropriate payments to the water assurance district with respect to certain water rights.

The fiscal note on the original bill states that the bill would require an additional mailing by the Division of Water Resources and that the cost could be absorbed within existing budgetary resources.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/bill_search.html.