Kansas Attorney General Opinion 2012-016

May 24, 2012
ATTORNEY GENERAL OPINION NO. 2012- 16
Thomas A. Adrian
Adrian & Pankratz
301 N. Main, Suite 400
Newton, Kansas 67114
Re: 	Waters and Watercourses—Appropriation of Water for Beneficial Uses—
Kansas Water Appropriation Act; Unlawful Acts; Penalties; Water Well
Contractor; Duties
Waters and Watercourses—Groundwater Exploration and Protection—
Licensure of Water Well Contractors; Log of Drilling, Boring or Digging;
Duty to Obtain Permit
Synopsis: 	A 	water 	well 	contractor 	is 	not 	obligated 	under 	the 	Kansas 	Water
Appropriation Act or the Kansas Groundwater Exploration and Protection
Act to apply for and obtain a permit to appropriate water or operate a
public water supply system prior to commencing water well construction or
reconstruction. 	Cited herein: 	K.S.A. 82a-701; 82a-702; 82a-705; 82a-
727; 82a-728; 82a-729; 82a-730; 82a-1201; 82a-1202; 82a-1203; 82a-
1205; K.S.A. 2011 Supp. 82a-1206; K.S.A. 82a-1207; 82a-1213; K.S.A.
2011 Supp. 82a-1214; 82a-1216; K.A.R. 28-15-16; 28-30-2; 28-30-3; 28-
30-4; 28-30-5; 28-30-6; 28-30-7; 28-30-8; 28-30-10.
* 	* 	*
Dear Mr. Adrian:
As legal counsel for the Board of Directors of Equus Beds Groundwater Management
District No. 2, you request our opinion regarding whether a water well contractor is
obligated under the Kansas Water Appropriation Act or the Kansas Groundwater
Exploration and Protection Act to apply for and obtain a permit to appropriate water or
ensure that a landowner has applied for and obtained a permit to appropriate water prior

Thomas Adrian
Page 2
to commencing drilling activities. 	For purposes of this opinion, it is presumed that the
water well contractor1 is an entity separate from the landowner and has no interest in
nor will derive any benefit from the land upon which the well is drilled or upon which
water obtained from the well is distributed.
Kansas Water Appropriation Act
In 	1945, 	the 	Legislature 	enacted 	the 	Kansas 	Water 	Appropriation 	Act 	(WAA),2
"provid[ing] an effective procedure for acquiring water appropriation rights." 3 Under the
WAA, "[a]ll water within the state of Kansas is hereby dedicated to the use of the people
of the state, subject to the control and regulation of the state in the manner [prescribed
in the WAA]."4 "[N]o water rights, except for domestic use, may be established in
Kansas without complying with the statutory procedure." 5 "No person shall have the
power or authority to acquire an appropriation right to the use of water for other than
domestic use without first obtaining the approval of the chief engineer [of the division of
water resources of the Kansas Department of Agriculture]."6 K.S.A. 82a-728 provides
penalties for diversion of water in excess of the maximum allowed under either a vested
right or an appropriation permit.
(a) 	Except for the appropriation of water for the purpose of domestic use
[and other designated purposes], it shall be unlawful for any person to
appropriate or threaten to appropriate water from any source without first
applying for and obtaining a permit to appropriate water in accordance
with the provisions of chapter 7 of article 82a of the Kansas Statutes
Annotated and acts amendatory thereto or, for any person to violate any
condition of a vested right, appropriation right or an approved application
for a permit to appropriate water for beneficial use. . . .
(b)(1) 	The violation of any provision of this section by any person is a
class C misdemeanor.
(2) 	Each day that any such violation occurs after notice of the original
violation is given by the chief engineer to any such violator by restricted
mail shall constitute a separate offense. 7
"Person" is defined in the WAA as including "a natural person, a partnership, an
organization, a corporation, a municipality and any agency of the state or federal
government."8
1 A water well contractor is a person who constructs, reconstructs, or treats a water well. K.S.A. 82a-
1203(g).
2 K.S.A. 82a-701 et seq. See K.S.A. 82a-730. The provisions of K.S.A. 82a-727 and 82a-728 are part of
and supplemental to the Kansas Water Appropriation Act. K.S.A. 82a-729.
3 F. Arthur Stone & Sons v. Gibson, 230 Kan. 224, 229-30 (1981).
4 K.S.A. 82a-702.
5 F. Arthur Stone, 230 Kan. at 230.
6 K.S.A. 82a-705. See K.S.A. 82a-701(b).
7 K.S.A. 82a-728 (emphasis added).

Thomas Adrian
Page 3
In determining whether a water well contractor is required to obtain a permit before
commencing drilling activities, a review of the applicable rules of statutory construction
is necessary.
When courts are called upon to interpret statutes, the fundamental rule
governing our interpretation is that the intent of the legislature governs if
that intent can be ascertained. 	The legislature is presumed to have
expressed its intent through the language of the statutory scheme it
enacted. 	For this reason, when the language of a statute is plain and
unambiguous, an appellate court is bound to implement the expressed
intent. 9
"When a statute is plain and unambiguous, an appellate court does not speculate as to
the legislative intent behind it and will not read into the statute something not readily
found in it."10 In addition:
As a general rule, criminal statutes must be strictly construed in favor of
the accused. 	Any reasonable doubt as to the meaning of the statute is
decided 	in 	favor 	of 	the 	accused. 	Nevertheless, 	this 	rule 	of 	strict
construction is subordinate to the rule that judicial interpretation must be
reasonable and sensible to achieve legislative design and intent. 11
Under the plain language of K.S.A. 82a-728, it is the duty of the person who is
attempting to appropriate or threatening to appropriate water to obtain the permit.
"Appropriate" is "[t]o make a thing one's own; to make a thing the subject of property; to
exercise dominion over an object to the extent, and for the purpose, of making it
subserve one's own proper use or pleasure."12
An appropriation of water flowing on the public domain consists in the
capture, impounding, or diversion of it from its natural course or channel
and its actual application to some beneficial use private or personal to the
appropriator, to the entire exclusion (or exclusion to the extent of the water
appropriated) of all other persons.13
A water well contractor may fall within the definition of a "person" under the WAA. 	The
well contractor, however, is not attempting to make the water his own, nor will the well
contractor derive some beneficial use from the water. The clear language of the statute
8 K.S.A. 82a-701(a).
9 Herrell v. Nat'l Beef Packing Co., LLC, 292 Kan. 730, 745 (2011) (internal citations and quotation marks
omitted).
10 State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 357 (2010).
11 State v. Foster, 46 Kan.App.2d 233, 238 (2011) (internal citations omitted). 	See State v. Cash, 293
Kan. 326, 328 (2011).
12 Black's Law Dictionary 93 (5 th Ed., 1979).
13 Id.

Thomas Adrian
Page 4
requires the potential appropriator 14 obtain the permit from the chief engineer. 	The
WAA contains no language that confers upon a party who is not actually appropriating
or threatening to appropriate a duty to ensure that such a permit is in place prior to
commencing drilling activities. 	Strictly construing the provisions precludes extending
this obligation to a well contractor who has no interest in nor will derive any benefit from
the land upon which the well is drilled or upon which water obtained from the well will be
distributed. 	The well contractor, therefore, is not required under K.S.A. 82a-728(a) to
apply for and obtain a permit to appropriate water or ensure that such a permit is in
place before drilling. 	The responsibility for applying for and obtaining the permit falls
upon the party who is attempting to appropriate water for his own use, presumptively
the landowner.
Kansas Groundwater Exploration and Protection Act
In order to protect the health and general welfare of the citizens of the State and to
protect 	groundwater 	resources 	from 	waste 	and 	potential 	pollution, 	the 	Kansas
Groundwater 	Exploration 	and 	Protection 	Act 	(GEPA): 15 requires 	that 	water 	well
contractors be licensed; provides for the establishment of regulations and standards for
well construction, reconstruction, treatment, and plugging; requires that water well
contractors keep and transmit to the State, upon request, a log of certain data; and
provides 	penalties, 	both 	criminal 	and 	civil, 	for 	violations.16 The 	Legislature 	has
conferred 	upon 	the 	Secretary 	of 	Health 	and 	Environment: 	responsibility 	for
administering 	the 	GEPA 	and 	authority 	to 	inspect 	the 	construction, 	reconstruction,
treatment or plugging of water wells; 17 authority to establish standards for plugging
holes; 18 authority to "investigate by examination or otherwise, the qualifications of all
applicants for initial licenses as water well contractors;"19 and authority to provide for
continuing educational requirements and renewal of licenses. 20 A person seeking
licensure as a water well contractor must demonstrate "[f]amiliarity with Kansas water
laws, sanitary standards for water well drilling and construction of water wells and rules
and 	regulations 	relating 	to 	water 	well 	construction, 	reconstruction, 	treatment 	and
plugging as adopted by the secretary."21
Any person who shall willfully violate any lawful rule or regulation of the
secretary relating to water well contracting, or who shall engage in the
business of constructing, reconstructing or treating water wells without first
having obtained a license as in this act required [sic], or who shall
14 "Appropriator" is defined as "a person who has an appropriation right that has been perfected in
conformity with article 7 of chapter 82a of the Kansas Statutes Annotated and acts amendatory thereof
and supplemental thereto." K.S.A. 82a-701(e).
15 K.S.A. 82a-1201 et seq.
16 Peterson v. Kansas Dept. of Health & Environ., 31 Kan.App.2d 13, 14 (2002). See K.S.A. 82a-1202;
82a-1205; K.S.A. 2011 Supp. 82a-1206; 82a-1214; 82a-1216.
17 K.S.A. 82a-1205(a), (c).
18 K.S.A. 82a-1213.
19 K.S.A. 82a-1207.
20 K.S.A. 82a-1205(e).
21 K.S.A. 82a-1207(a).

Thomas Adrian
Page 5
knowingly violate any provisions of this act, shall be guilty of a class B
misdemeanor and subject to penalties therefor as provided by law. 	In
addition the secretary of health and environment is hereby authorized to
apply 	to 	the 	district 	court 	for 	enforcement 	of 	this 	act 	or 	rules 	and
regulations adopted under this act in accordance with the provisions of the
Kansas judicial review act.22
In addition, "[a]ny person who violates any provision of the [GEPA], any rules and
regulations adopted thereunder or any order issued by the secretary thereunder" is
subject to a civil penalty of not to exceed $5,000 for each violation,23 regardless whether
such violation is willful. 24
Regulations adopted by the Secretary under authority of the GEPA are located at
K.A.R. 28-30-2 through 28-30-10. K.A.R. 28-30-3 sets licensure fees and provides that,
to 	be 	eligible 	for 	a 	water 	well 	contractor's 	license, 	an 	applicant 	must 	pass 	an
examination conducted by the Kansas Department of Health and Environment (KDHE)
or be licensed in another state and meet the minimum requirements for licensing as
prescribed in K.S.A. 82a-1207. 	Other regulations address when reports are to be
submitted by a water well contractor25 and provide standards for the location of wells 26
and grouting, sealing, casing, 27 disinfecting, 28 and plugging of wells. 29 K.A.R. 28-30-5
states that "[a]ll activities involving public water supply wells and wells located in
reservoir sanitation zones shall conform to existing statutes, and rules and regulations,
of [KDHE], including K.A.R. 28-10-100,30 28-10-101, 31 and 28-15-16."32
The plain language of the GEPA requires that a water well contractor demonstrate
"familiarity with Kansas water laws," abide by any lawful rule or regulation of the
Secretary of KDHE relating to water well contracting, and obtain the proper license prior
to engaging in the business of constructing, reconstructing, or treating water wells.
Under the WAA, the obligation to obtain a permit from the chief engineer of the Division
of Water Resources of the Kansas Department of Agriculture to appropriate water is
placed upon the party who is attempting to appropriate water. 	K.A.R. 28-15-16
obligates the person who is operating a public water supply system to have a permit
issued by the Secretary of KDHE. 	Because failure to abide by the GEPA subjects the
violator to criminal penalties, its provisions should be strictly construed in favor of the
accused. 	The language of the GEPA is not sufficiently clear to shift to a water well
22 K.S.A. 2011 Supp. 82a-1214.
23 K.S.A. 2011 Supp. 82a-1216(a).
24 Peterson, 31 Kan.App.2d at 19-20.
25 K.A.R. 28-30-4.
26 K.A.R. 28-30-4; 28-30-8.
27 K.A.R. 28-30-6.
28 K.A.R. 28-30-10.
29 K.A.R. 28-30-7.
30 Revoked March 23, 2001.
31 Revoked March 23, 2001.
32 K.A.R. 28-15-16(a) provides that "[e]ach person who operates a public water supply system shall be
required to have a permit issued by the secretary [of health and environment]."

Thomas Adrian
Page 6
contractor the obligation to obtain a permit to appropriate water or operate a public
water supply system. 	Likewise, the GEPA does not include any language that confers
upon another party a duty to ensure that a permit to appropriate water is in place prior to
constructing, reconstructing, or treating water wells. 	The duty to obtain the permit
remains with the person who is attempting to appropriate water or operate a public
water supply system.
Sincerely,
Derek Schmidt
Kansas Attorney General
Richard D. Smith
Assistant Attorney General
DS:AA:RDS: