Water questions in western Kansas, answered plainly

Bring up data centers at a coffee shop in western Kansas and water comes up before anything else. That is the right instinct in a part of the country where the aquifer is the whole conversation, and it deserves a straight answer rather than reassurance.

Do all data centers use the same amount of water?

No, and that is the thing that makes the question hard to answer in one line. Water use varies enormously depending on how a facility is cooled.

Some designs use evaporative cooling, which consumes real quantities of water. Others use closed loop or air cooled systems that use very little on an ongoing basis. The difference between the two is not small, and it is a design decision made early.

So a blanket claim in either direction, that data centers drink the aquifer dry or that they barely use water at all, is not telling you anything useful about any particular project. The honest answer is that it depends on the design, and the design is a fair thing to ask about.

What does the state incentive require about water?

The Kansas data center sales tax exemption is conditional, and one of the conditions concerns water. To qualify, an operator has to commit to practices that conserve, reuse, and replace water, including water efficient fixtures and recycling water before discharging it.

That is a real requirement attached to a real financial benefit, which gives it teeth it would not have as a voluntary pledge.

It also does not settle every local concern, and we are not going to pretend it does. A statutory commitment is not the same as a specific answer about a specific aquifer in a specific township.

Does my Kansas water right stay with me when I sell the land?

Not unless you reserve it in writing. This is the part most people have backwards, including us in an earlier version of this article, so it is worth stating precisely.

K.S.A. 82a-701 defines a water right as a real property right appurtenant to and severable from the land on or in connection with which the water is used, and it says that the right passes as an appurtenance with a conveyance of the land by deed, lease, mortgage, will, or other disposal, or by inheritance.

Those two halves point in different directions and both matter. Severable means the water right can be separated from the ground. Passes as an appurtenance means that if nobody separates it on purpose, it goes with the deed.

So the default is not that you keep your water. The default is that it travels with the land. If you intend to convey ground and hold the water right back, that has to be written into the conveyance. Silence does not preserve it for you.

What should I know about my own water rights before any of this?

Know what you actually hold, in writing, before a conversation gets far.

Which rights are attached to which ground. What the authorized quantity and the authorized place of use are. What the recent use history looks like, because under K.S.A. 82a-718 a water right can be declared abandoned and terminated when five successive years pass with no lawful beneficial use and no due and sufficient cause for the nonuse. The chief engineer has to hold a hearing before that happens, and your annual water use reports are the record that shows use.

Then decide what you want to happen. Conveying ground and reserving the water right is possible. So is conveying both together. So is a combination. What you should not do is leave it unaddressed and assume it will sort itself out at closing, because now you know which way the default runs.

Talk to a Kansas attorney who does water rights specifically. This is a specialized area and general agricultural practice is not the same thing.

Are my neighbors going to object?

Some of them may, and that is a legitimate part of your decision rather than something to be talked out of. Public meetings about data centers in Kansas draw crowds, and water is usually why.

You are entitled to ask a prospective buyer what cooling approach a project would use and where the water would come from. If nobody will give you a straight answer to that, treat the evasion as information.

Nothing here is legal advice, and your own water rights situation governs over anything general said in an article.