September 12, 2002

ATTORNEY GENERAL OPINION NO. 2002- 40

The Honorable Dan Thimesch

State Representative, 93rd District

30121 W. 63rd Street South

Cheney, Kansas 67025

Re:	Waters and Watercourses--Obstructions in Streams--Conditions to Permits; Liability for Injury

Synopsis:	An upstream landowner has a duty to protect a lower proprietor or downstream landowner from any damage resulting from the upstream landowner's gathering or diversion of water. The Stream Obstructions Act requires that any person, entity, agency or political subdivision of the State obtain a permit from the Division of Water Resources, Kansas Department of Agriculture, before making any change to: (1) Construct any dam or other water obstruction; (2) make, construct, or permit to be made or constructed any change in any dam or other water obstruction; (3) make or permit to be made any change in or addition to any existing water obstruction; or (4) change or diminish the course, current, or cross section of any stream within the State. The permit process in the Stream Obstructions Act is intended to determine if the proposed plan or change creates an unreasonable threat to the public safety or property, generally, but because the Act does not place a statutory duty on the Division of Water Resources to protect a downstream landowner affected by the permitee's (the upper landowner) structure or displacement of water, the Division of Water Resources does not incur liability from the permit process statute they administer. Cited herein: K.S.A. 2001 Supp. 75-6104; K.S.A. 82a-301, 82a-302; 82a-303b, as amended by L. 2002, Ch. 138, § 4.

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Dear Representative Thimesch:

You inquire whether there is any state liability for damage when the Division of Water Resources issues a permit for the construction of a new bridge or other stream obstruction and there is subsequent damage to a downstream landowner as a result of the new bridge.

You indicate that your question arises in the context of a 1996 Kansas Supreme Court case, Johnson v. Board of County Commissioners of Pratt County.1 In that case, the plaintiff sued the County and the engineering firm for negligent design and construction of a new bridge seeking recovery for repeated erosion damage from flooding allegedly caused by the new structure. The Court held that the County was liable because, as a landowner, the County has a duty not to cause substantial injury to downstream property when the County replaced the bridge.2

COUNTY'S TORT CLAIMS DEFENSE

In Johnson, the Court noted that the failure to obtain a channel alteration permit was relevant to the applicability of the County's tort claims exemption defense found at K.S.A. 2001 Supp. 75-6104(m)3 dealing with an improvement to public property. A county, as a governmental entity, is subject to the Kansas Tort Claims Act, which imposes liability for damages caused by negligent acts under circumstances where the governmental entity, if a private person, would be liable, unless an exception applies. The exception found at K.S.A. 2001 Supp. 75-6104(m) exempts the plan for the construction of or the design of an improvement to public property if the plan or design is approved in advance of construction or improvement by the governing body "exercising discretionary authority to give such approval" and if the design is prepared "in conformity with the generally recognized and prevailing standards in existence at the time such plan or design was prepared." Because Pratt County did not obtain prior approval4 from the Division of Water Resources, the agency that exercises discretionary authority over channel alterations,5 the Court found that the public improvement exemption defense in the Tort Claims Act did not apply to provide immunity to the County from liability.6

The case stands for the proposition that an upstream landowner who constructs or replaces a watercourse obstruction has a duty to downstream landowners not to cause damage to downstream property and if the upstream landowner is a governmental agency, the Tort Claims Act requires compliance with the statutory requirements found in the Stream Obstructions Act in order for the public improvement exemption in the Tort Claims Act to have application. The Court did not, however, find that the Division of Water Resources has a duty to a downstream landowner as a result of the permit process. Addressing the permit process, the Court noted that compliance with K.S.A. 82a-301 "may either have prevented or reduced the damages alleged by the Johnsons"7 and stated: "We suggest that appropriate state agencies and governmental subdivisions comply with the statutory permit requirements."8

The permit process is implicated when any person, partnership, association, corporation, agency or political subdivision makes one or more of four changes. K.S.A. 82a-301, as amended by L. 2002, Ch. 138, § 4, states:

"Without the prior written consent or permit of the chief engineer of the division of water resources of the Kansas department of agriculture, it shall be unlawful for any person, partnership, association, corporation or agency or political subdivision of the state government to: (1) Construct any dam or other water obstruction; (2) make, construct or permit to be made or constructed any change in any dam or other water obstruction; (3) make or permit to be made any change in or addition to any existing water obstruction; or (4) change or diminish the course, current, or cross section of any stream within this state. Any application for any permit or consent shall be made in writing in such form as specified by the chief engineer. Jetties or revetments for the purpose of stabilizing a caving bank which are properly placed shall not be construed as obstructions for the purposes of this section."

The permit process in the statute is intended to determine if the proposed plan or change creates an unreasonable threat to the public safety or property.9 The Stream Obstructions Act does not create a duty on the Division of Water Resources to protect a downstream landowner affected by the permitee's structure or water displacement. The Court in Johnson did not find that the Division of Water Resources has any duty outside that which is established by the statute. Thus, the Court's decision in Johnson, in our opinion, does not serve as a basis for imputing liability to the Division of Water Resources for damage to a downstream landowners affected by a change that is subject to the permit process found in K.S.A. 82a-301, as amended. We note that is beyond the scope of this opinion to address the existing case law concerned with liability incurred when an upstream landowner is a governmental agency and argues that a different exemption of the Tort Claims Act applies to immunize the agency from liability.10

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

Guen Easley

Assistant Attorney General

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