Principles governing appropriations; priorities

82a-707. Principles governing appropriations; priorities. (a) Surface or groundwaters of the state may be appropriated as herein provided. Such appropriation shall not constitute ownership of such water, and appropriation rights shall remain subject to the principle of beneficial use. (b) The date of priority of every water right of every kind, and not the purpose of use, determines the right to divert and use water at any time when the supply is not sufficient to satisfy all water rights. Where lawful uses of water have the same date of priority, such uses shall have priority in the following order of preference: Domestic, municipal, irrigation, industrial, recreational and water power uses. The holder of a water right for an inferior beneficial use of water shall not be deprived of the use of the water either temporarily or permanently as long as such holder is making proper use of it under the terms and conditions of such holder's water right and the laws of this state, other than through condemnation. (c) As between persons with appropriation rights, the first in time is the first in right. The priority of the appropriation right to use water for any beneficial purpose except domestic purposes shall date from the time of the filing of the application therefor in the office of the chief engineer. The priority of the appropriation right to use water for domestic purposes shall date from the time of the filing of the application therefor in the office of the chief engineer or from the time the user makes actual use of water for domestic purposes, whichever is earlier. (d) Any water right returned to the state under the provisions of K.S.A. 2-1915, and amendments thereto, shall be placed in the custodial care of the state. While in the custodial care of the state, the priority of the water right shall remain in effect and water available under the terms and conditions of the water right shall not be considered available for further appropriation. Any surface water right held in the custodial care of the state shall neither directly benefit nor impair any other surface water right within the stream reach designated for recovery. Any water right donated to the state shall be placed in the custodial care of the state or retired at the discretion of the chief engineer. (e) Appropriation rights in excess of the reasonable needs of the appropriators shall not be allowed. History: L. 1917, ch. 172, § 6; R.S. 1923, 24-903; L. 1945, ch. 390, § 7; L. 1957, ch. 539, § 14; L. 1988, ch. 396, § 3; L. 2009, ch. 65, § 3; July 1. Law Review and Bar Journal References: Amendment of 1957 analyzed, Earl B. Shurtz, 6 K.L.R. 264, 268, 269 (1957). The water depletion deduction in Kansas, 25 K.L.R. 453, 458 (1977). "Weather Modification,'' John E. Howe, 46 J.B.A.K. 35, 37 (1977). "Kansas Groundwater Management Districts," John C. Peck, 29 K.L.R. 51, 69, 88 (1980). "Kansas Water Appropriation Statutes and the Oil and Gas Industry in Kansas," Eva N. Neufeld, 50 J.B.A.K. 43, 45 (1981). "Legal Constraints on Diverting Water from Eastern Kansas to Western Kansas," John C. Peck, 30 K.L.R. 160, 165, 166, 174, 175, 176, 178, 194, 204, 208 (1982). "The Parting of the Waters—The Dispute Between Colorado and Kansas Over the Arkansas River," Mark J. Wagner, 24 W.L.J. 99 (1984). "Legal Aspects of Water Storage in Federal Reservoirs in Kansas," John C. Peck, 32 K.L.R. 785 (1984). "High Noon on the Ogallala Aquifer: Agriculture Does Not Live by Farmland Preservation Alone," Myrl L. Duncan, 27 W.L.J. 16, 47, 72 (1987). "Loss of Water Rights for Non-Use," John C. Peck and Constance Crittenden Owen, 43 K.L.R. 801, 805 (1995). "Title and Related Considerations in Conveying Kansas Water Rights," John C. Peck, 66 J.K.B.A. No. 9, 38 (1997). "Time to Bite the Bullet: A Look at State Implementation of Total Maximum Daily Loads (TMDLS) Under Section 303(d) of the Clean Water Act," Mary E. Christopher, 40 W.L.J. 480 (2001). "Assessing the Quality of a Water Right," John C. Peck, 70 J.K.B.A. No. 5, 26 (2001). "Property Rights in Groundwater - Some Lessons from the Kansas Experience," John C. Peck, XII Kan. J.L. Pub Pol'y No. III, 493 (2003). "Attention Kansas Water Right Holders: Be Nice to Your Neighbors, They're Policing Your Water Rights [Hawley v. Kansas Dep't of Agric., 132 P.3d 870 (Kan. 2005)]," Tyler A. Darnell, 46 W.L.J. 429 (2007). Leah Stein, Saving the Ogallala Aquifer: Kansas's Duty to Protect Intergenerational Water Rights, 34 Kan. J.L. & Pub. Pol'y 80 (2024). Attorney General's Opinions: Consideration of applications to contract for withdrawal of state water. 83-151. CASE ANNOTATIONS 1. History of section mentioned in dissenting opinion in case holding Water Appropriation Act (K.S.A. 82a-701 et seq.) constitutional. Williams v. City of Wichita, 190 Kan. 317, 363, 364, 374 P.2d 578. 2. Discussed; state division of water resources has no authority over underground water rights. State ex rel., v. Board of Agriculture, 158 Kan. 603, 605, 610, 611, 612, 613, 149 P.2d 604. 3. Cited in holding K.S.A. 82a-728 does not constitute unconstitutional taking of property. F. Arthur Stone & Sons v. Gibson, 230 Kan. 224, 230, 630 P.2d 1154 (1981).