Bed, Bank & Beyond: Streambed Regulation in Kansas
| Publication year | 2015 |
| Pages | 26 |
| Citation | Vol. 84 No. 3 Pg. 26 |
By Tom Adrian and Dave Stucky
I. Introduction
A Kansas farmer wishes to modify a streambed to enhance his ability to farm his land. He desires to widen the banks to improve drainage and to construct a retention pond within the stream to water livestock and to irrigate crops. The question arises regarding what types of permits the farmer may need to conduct his activities. Does he need federal, state, or local permits? Any attempt to expand federal regulation of our nation's waters has always served as a galvanizing topic met with momentous resistance. Although there is significant attention given to federal regulation in this area, the majority of oversight of waterways in Kansas actually occurs at the state and local level.
To explain Kansas laws germane to streams, this article will first briefly provide a summary of the basic classifications of watercourses for the purpose of determining which types of regulations apply. Next, it will offer a detailed discussion of the definition of a stream in Kansas. The final section will present an overview of Kansas regulations applicable to alterations of streams.
II. Classifications of Rivers and Streams in Kansas
There are three major categories of watercourses: navigable streams, non-navigable streams, and diffused surface water. The focus of this article will be on nonnavigable streams. However, a brief overview of each classification is warranted.
A. Navigable streams
The first category of consequence is navigable streams.[1] The state owns the beds of navigable streams. The public can freely access the water in navigable streams and the beds up to the high water mark.[2] To determine the navigability of a stream, Kansas courts have adopted a "navigable in fact" test.[3] Currently, in Kansas, three rivers have been deemed navigable under this test: the Kansas, the Arkansas, and the Missouri.[4]
Distinct from the state test for navigability is the question of whether major watercourses are subject to federal regulation under the Commerce Clause of the U.S. Constitution.[5] Extensive jurisprudence exists in this area. Currently, the test for navigability for federal purposes is the significant nexus test.[6] A variety of federal laws apply to navigable waterways. [7] A meaningful discussion of federal regulation in this area is beyond the scope of this article.[8]
B. Nonnavigable streams
The next major classification of waterways deals with nonnavigable streams. The definition of streams in Kansas will be discussed in detail later in this article. As a general rule, a landowner who owns the property through which a nonnavi-gable stream flows has the exclusive right to access the water.[9] The landowner also owns the bed and thus may alter, obstruct, or dam the stream.[10]
The riparian[11] landowner's rights to access to the water and ownership of the bed are far from unfettered property rights and are subject to expansive state regulation.[12] In Kansas, rules governing nonnavigable streams are primarily administered by the Kansas Department of Agriculture, Division of Water Resources (DWR).[13] Additionally, because the rules governing federal and state regulation are often blurred in application, many stream situations should be viewed as subject to both state and federal regulation.
C. Diffused surface water
The final category is diffused surface water. Diffused surface water deals with unwanted water and is commonly thought of as runoff.[14] It encompasses all water flowing in depressions not otherwise classified as streams or rivers.[15]Since that is water not generally thought to be subject to state[16] or federal regulation, Kansas courts have adopted distinct rules to deal with situations where a landowner alters his land in a fashion that increases the volume and velocity of water that flows onto his neighbor's property.[17] A discussion of this topic is also beyond the focus of this article.[18]
III. The Definition of a Stream in Kansas
It is important first to examine the definition of a stream. Common dictionary definitions of "stream" include "a body of running water (as a river or brook) flowing on the earth"[19] or "a small, narrow river."[20] The term "watercourse" seems to be broader and is defined variously in dictionaries as "a natural or artificial channel through which water flows" or "a stream of water (as a river, brook, or underground stream)"[21] or "a brook, stream, or artificially constructed water channel" or "the bed along which a watercourse flows."[22]
Interestingly, while Kansas has regulated stream obstructions since 1929,[23] the statutes contained no definition of stream until 2013, as discussed below. The chief engineer of DWR, however, first defined "stream" in regulations in the year 1987.[24] At the heart of this discussion on definitions is the recent pivotal case of Frank v. Kansas Department of Agriculture .[25] This section will conclude with a look at post-Frank statutory changes to the definition of a stream.
A. Frank v. Kansas Department of Agriculture, 40 Kan. App. 2d 1024 (2008)
1. Facts
Acting on a permit obtained from DWR, Frank dug a groundwater pit on his land.[26] As a condition to approval of the permit, DWR required Frank to construct an embankment around the pit to avoid untreated surface-water runoff from entering into the pit and contaminating the groundwater supply.[27] Frank built the pit in compliance with his permit along a depression in his land that intermittently drained water from the surrounding watershed.[28]
The location of the pit, and surrounding berm, caused water to back up onto his neighbor's property.[29] Upon receiving complaints from Frank's neighbor, the chief engineer of DWR concluded that Frank had obstructed a stream and needed an additional permit.[30] Frank appealed that decision, arguing that no stream existed.[31]
2. Statutes and regulations at issue in Frank
Central to the Frank case was the stream obstruction statute. Contained in K.S.A. 82a-301, the language in effect at the time broadly prohibited the building of any obstruction within a stream or changing the course of a stream.[32] When Frank was decided in 2008, this statute contained no definition of a stream.[33] The stream obstruction statute will be discussed in much greater detail later in this article.
Despite the fact that K.S.A. 82a-301 failed to define a stream, DWR had adopted a regulation defining a stream.[34]At the time of the decision, the relevant regulation was K.A.R. 5-40-1(k), which defined a stream as "any watercourse that has a well-defined bed and banks" that exists within a watershed meeting the requisite acreage requirement above the geographic point in question.[35] Under that regulation, the acreage threshold for the watershed depended on the county in Kansas where the alleged stream was located, with the state being divided into three geographic zones with the following acreage requirements: 240 acres in eastern Kansas, 320 acres in central Kansas and 640 acres (a full square mile) in western Kansas.[36]
The definition further stated that the "stream need not flow continuously and may flow only briefly after a rain in the watershed."[37] Finally, the definition provided that even if no discernible bed and banks existed, yet the requisite watershed size was met, then a presumption existed in favor of the existence of a stream.[38] That presumption could only be overcome by the landowner providing "conclusive" evidence to the contrary.[39]
3. Holding in Frank
Frank argued that the location in question did not contain a stream because there was no evidence of a bed or banks in the immediate years prior to his construction efforts.[40] DWR, on the other hand, reasoned that Frank must show that no stream existed at any time since 1929, the year the stream obstruction statute was adopted.[41] To support its conclusion that a stream existed, DWR produced a 1955 U.S. Geological Survey (USGS) map showing a stream and proof that the Kansas Department of Transportation (KDOT) had built a large culvert under a bridge near Frank's property.[42]
The court upheld the agency's interpretation of the definition of a stream.[43] It adopted the approach that the landowner has the burden of proving that since 1929 no stream existed and that a stream can exist even when water only flows occa-sionally.[44] Underlying the court's decision was the law affording deference to agency interpretations of statutes.[45] The court noted, "Deference to an administrative agency is of course greatest when the agency must apply special training or expertise in administering a statute."[46]
4. Implications of Frank
Because of the sweeping definition adopted in Frank, a heavy burden is placed on a landowner who attempts to avoid state regulation when a potential watercourse exists. Because that burden is difficult to overcome, even when a landowner escapes the tentacles of federal oversight, state regulations will likely apply.[47] Thus, a thorough discussion of state statutes and agency rules will be presented later in this article.
The court attached significance to the fact that Frank's actions flooded his neighbor's property.[48] Although perhaps not attempting to limit its opinion to the narrow facts of the case, the court wrote, "When the construction of a barrier to waterflow causes changes to the amount of water flowing onto other properties, application of the chief engineer's presumption is quite rational."[49] The court left the door open to the possibility that a case may arise in which "applying the chief engineer's presumption would be so unreasonable that a court would reverse the administrative decision."[50]
B. The new definition of a stream in Kansas
In the 2013 legislative...
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