An Act concerning water; relating to review of certain
decisions of the chief engineer of
the division of water resources of the department of agriculture;
relating to issuance of
certificates of appropriation; providing for the secretary of
agriculture to review and
make recommendations relating to certain rules and regulations;
providing for the Kan-
sas water office to study and make recommendations regarding
certain matters; amend-
ing K.S.A. 42-703, 42-722, 42-722a, 82a-708b, 82a-711, 82a-714,
82a-718, 82a-724 and
82a-1038 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. On and after July 1,
1999, K.S.A. 42-703 is hereby
amended to read as follows: 42-703. Upon receipt of the application
of
the proposed irrigation district by the chief engineer, the chief
engineer
shall cause to be published at applicant's expense, once each week
for
three consecutive weeks, in a newspaper or newspapers of general
cir-
culation in the vicinity of the watercourse or source of supply
from which
water is sought for the land to be included in the proposed
irrigation
district, a notice of hearing upon such application. The published
notice
shall be directed to all persons concerned, without specifically
naming
any person. Such notice shall contain among other matters a general
de-
scription of boundaries of the district as proposed; the purpose of
the
district as proposed; the source of the water supply sought for use
and
the approximate point of diversion proposed; and the date and place
of
hearing. Incorporated cities shall be excluded from such district.
Any
person interested, at any time after first publication of such
notice and
prior to the expiration of 60 days after the first publication of
such notice,
may file in duplicate with the chief engineer, a verified written
protest
against the approval of such application, stating therein all
reasons relied
upon in objection thereto, which objections shall be duly
considered by
the chief engineer.
A person who signs a petition and application
for the organization and
incorporation of a proposed irrigation district shall be permitted
to with-
draw such person's name as a signer only if the chief engineer
determines
that the signature was obtained by fraud, undue influence or mutual
mis-
take of fact. All applications for withdrawal of a signature from
the petition
must be filed with the chief engineer, within 30 days after the
first pub-
lication of the notice of hearing. The chief engineer may hear and
deter-
mine any such application for withdrawal of a signature in advance
of the
hearing for approval of the petition for establishment and
organization of
the proposed irrigation district.
Any action of the chief engineer upon an
application of a proposed
irrigation district is subject to review in accordance with the
provisions of section 10 and amendments thereto. Any action upon such
review is sub-
ject to review in accordance with the act for judicial review and
civil
enforcement of agency actions.
Sec. 2. On and after July 1, 1999,
K.S.A. 42-722 is hereby amended
to read as follows: 42-722. Except as provided by K.S.A. 42-722a
and amendments thereto, whenever a petition signed by a majority
of the
members of the board of directors of an irrigation district, or by
a majority
of the qualified owners of irrigable land within a district as
defined in
K.S.A. 42-701, and amendments thereto, organized or existing under
pro-
visions of this act, is presented to the chief engineer praying for
the dis-
solution of the district, and it shall appear from the petition
that the
district has no real property; that the board of directors has not
held a
meeting, other than those meetings held for the purpose of
considering
any aspect of the election of members of the board of directors,
for more
than one year prior to the date resulting in signing and
presentation of
the petition; and that the district is not functioning, had ceased
to function
and will probably continue inoperative and that all indebtedness
and ob-
ligations of the district have been satisfied, the chief engineer,
after such
finding, shall issue a certificate in duplicate, declaring the
irrigation dis-
trict dissolved. The chief engineer shall forward the original of
the cer-
tificate to the secretary of state and the duplicate to the
secretary of the
board of directors of the irrigation district. The certificate
shall: (a) Direct
the secretary of the district to file all minutes and records of
the district
with the county clerk of the county wherein the registered office
of the
irrigation district is located; (b) direct the officer of such
district having
custody of any personal property other than moneys to make such
dis-
position as the chief engineer deems proper; and (c) direct the
treasurer
of such district to transfer to the county treasurers of the
counties within
such district, moneys held in the name of the district, to be
distributed
by such treasurer in proportion to the number of acres of each
county
within the district. The county treasurer shall deposit such moneys
into
the county general fund. The irrigation district shall be dissolved
and
cease to exist upon expiration of 30 days after the date of the
issuance of
such certificate, or upon expiration of 30 days after a final
order pursuant to section 10 and amendments thereto or a final judicial
determination
affirming the findings of the chief engineer, as set out in the
certificate,
in event that an appeal is taken to the court
therefrom.
Sec. 3. On and after July 1, 1999,
K.S.A. 42-722a is hereby amended
to read as follows: 42-722a. The board of directors of Cedar Bluff
irri-
gation district No. 6 may present a petition, adopted by a majority
of the
directors, to the chief engineer requesting the dissolution of such
district.
The petition shall state the district has no real property; and
that the
district is not functioning, had ceased to function and probably
will con-
tinue inoperative; and that all indebtedness and obligations of the
district
have been satisfied. Upon finding that the petition is true, the
chief en-
gineer shall issue a certificate in duplicate, declaring the
irrigation district
dissolved, and shall forward the original of the certificate to the
secretary
of state and the duplicate to the secretary of the board of
directors of the
irrigation district. The certificate shall: (a) Direct the
secretary of the
district to file all minutes and records of the district with the
county clerk
of the county wherein the registered office of the irrigation
district is
located; (b) direct the officer of such district having custody of
any per-
sonal property other than moneys to make such disposition as the
chief
engineer deems proper; and (c) direct the treasurer of such
district to
distribute moneys held in the name of the district to the owners of
prop-
erty within the irrigation district. Such moneys shall be
apportioned to
each property owner in the district in the same proportion that the
num-
ber of irrigable acres owned by a property owner, and located in
such
district, bears to the total number of irrigable acres in the
district. The
irrigation district shall be dissolved and cease to exist upon
expiration of
30 days after the date of the issuance of such certificate, or upon
expi-
ration of 30 days after a final order pursuant to section 10 and
amend- ments thereto or final judicial determination affirming the
findings of the
chief engineer, as set out in the certificate, in event that an
appeal is taken to the court therefrom.
Sec. 4. On and after July 1, 1999,
K.S.A. 82a-708b is hereby amended
to read as follows: 82a-708b. (a) Any owner of a water right may
change
the place of use, the point of diversion or the use made of the
water,
without losing priority of right, provided such owner shall: (1)
Apply in
writing to the chief engineer for approval of any proposed change;
(2)
demonstrate to the chief engineer that any proposed change is
reasonable
and will not impair existing rights; (3) demonstrate to the chief
engineer
that any proposed change relates to the same local source of supply
as
that to which the water right relates; and (4) receive the approval
of the
chief engineer with respect to any proposed change. The chief
engineer
shall approve or reject the application for change in accordance
with the
provisions and procedures prescribed for processing original
applications
for permission to appropriate water. If the chief engineer
disapproves the
application for change, the rights, priorities and duties of the
applicant
shall remain unchanged. Any person aggrieved by an order or
decision
by the chief engineer relating to an application for change may
appeal to the district court in the manner prescribed by K.S.A.
82a-724 and amend- ments theretopetition for review thereof in
accordance with the provi- sions of section 10 and amendments thereto.
(b) Each application to change the place
of use, the point of diversion
or the use made of the water under this section shall be
accompanied by
the application fee set forth in the schedule below:
(1)
Application to change a point of
diversion 300 feet or less
$50
(2)
Application to change a point of diversion more than 300
feet
100
(3)
Application to change the place of use
100
(4)
Application to change the use made of the water
150
Any application submitted which requests two of the types of
changes set
forth above shall be accompanied by a fee of $150. Any application
which
requests three types of changes shall be accompanied by a fee of
$250.
(c) All fees collected by the chief
engineer pursuant to this section
shall be remitted to the state treasurer as provided in K.S.A.
82a-731 and
amendments thereto.
Sec. 5. On and after July 1, 1999,
K.S.A. 82a-711 is hereby amended
to read as follows: 82a-711. (a) If a proposed use neither impairs
a use
under an existing water right nor prejudicially and unreasonably
affects
the public interest, the chief engineer shall approve all
applications for
such use made in good faith in proper form which contemplate the
util-
ization of water for beneficial purpose, within reasonable
limitations ex-
cept that the chief engineer shall not approve any application
submitted
for the proposed use of fresh water in any case where other waters
are
available for such proposed use and the use thereof is
technologically and
economically feasible. Otherwise, the chief engineer shall make an
order
rejecting such application or requiring its modification to conform
to the
public interest to the end that the highest public benefit and
maximum
economical development may result from the use of such water.
(b) In ascertaining whether a proposed
use will prejudicially and un-
reasonably affect the public interest, the chief engineer shall
take into
consideration:
(1) Established minimum desirable
streamflow requirements;
(2) the area, safe yield and recharge
rate of the appropriate water
supply;
(3) the priority of existing claims of
all persons to use the water of
the appropriate water supply;
(4) the amount of each claim to use water
from the appropriate water
supply; and
(5) all other matters pertaining to such
question.
(c) With regard to whether a proposed use
will impair a use under
an existing water right, impairment shall include the unreasonable
raising
or lowering of the static water level or the unreasonable increase
or de-
crease of the streamflow or the unreasonable deterioration of the
water
quality at the water user's point of diversion beyond a reasonable
eco-
nomic limit. Any person aggrieved by any order or decision by the
chief
engineer relating to that person's application for a permit to
appropriate
water may appeal to the district court in the manner
prescribed by K.S.A. 82a-724, and amendments theretopetition for
review thereof in accord- ance with the provisions of section 10 and amendments
thereto.
Sec. 6. On and after July 1, 1999,
K.S.A. 82a-714 is hereby amended
to read as follows: 82a-714. (a) Upon the completion of the
construction
of the works and the actual application of water to the proposed
beneficial
use within the time allowed, the applicant shall notify the chief
engineer
to that effect. The chief engineer or the chief engineer's duly
authorized
representative shall then examine and inspect the appropriation
diversion
works and, if it is determined that the appropriation diversion
works have
been completed and the appropriation right perfected in conformity
with
the approved application and plans, the chief engineer shall issue
a cer-
tificate of appropriation in duplicate. The original of such
certificate shall
be sent to the owner and shall be recorded with the register of
deeds in
the county or counties wherein the point of diversion is located,
as are
other instruments affecting real estate, and the duplicate shall be
made
a matter of record in the office of the chief engineer.
(b) Not later than 60 days before the
expiration of the time allowed in the permit to complete the construction of the appropriation
diversion works or the time allowed in the permit to actually apply water
to the proposed beneficial use, the chief engineer shall notify the
permit holder by certified mail that any request for extension of such time
must be filed with the chief engineer before the expiration of the time
allowed in the permit.
(c) Unless the applicant requests an
extension or the certificate has not been issued due to the applicant's failure to comply with
reasonable requests for information or to allow the opportunity to examine
and in- spect the appropriation diversion works, as necessary for
certification, the chief engineer shall certify an appropriation:
(1) Before July 1, 2004, if the time
allowed in the permit to perfect the water right expired before July 1, 1999; or
(2) not later than five years after
the date the applicant notifies the chief engineer of the completion of construction of the works
and the actual application of water to the proposed beneficial use
within the time allowed, in all other cases.
If the chief engineer fails to issue a
certificate within the time provided by this subsection, the applicant may request review, pursuant
to section 10 and amendments thereto, of the chief engineer's failure to
act.
(b)(d) Except
for works constructed to appropriate water for do-
mestic use, each notification to the chief engineer under
subsection (a)
shall be accompanied by a field inspection fee of $200. Failure to
pay the
field inspection fee, after reasonable notice by the chief engineer
of such
failure, shall result in the permit to appropriate water being
revoked,
forfeiture of the priority date and revocation of any appropriation
right
that may exist. All fees collected by the chief engineer pursuant
to this
section shall be remitted to the state treasurer as provided in
K.S.A. 82a-
731 and amendments thereto.
(c)(e) A request
for an extension of time to: (1) Complete the diver-
sion works; or (2) perfect the water right, shall be accompanied by
a fee
of $50.
(d)(f) A request
to reinstate a water right or a permit to appropriate
water which has been dismissed shall be filed with the chief
engineer
within 60 days of the date dismissed and shall be
accompanied by a fee
of $100.
Sec. 7. On and after July 1, 1999,
K.S.A. 82a-718 is hereby amended
to read as follows: 82a-718. All appropriations of water must be
for some
beneficial purpose. Every water right of every kind shall be deemed
aban-
doned and shall terminate when without due and sufficient cause
no
lawful, beneficial use is henceforth made of water under such right
for
three successive years. Before any water right shall be declared
aban-
doned and terminated the chief engineer shall conduct a hearing
thereon in accordance with the provisions of the Kansas
administrative procedure act. Notice shall be served on the user at least
30 days before the date of
the hearing. The determination of the chief engineer pursuant to
this section shall be subject to review in accordance with the
provisions of section 10 and amendments thereto.
The verified report of the chief engineer or
such engineer's authorized
representative shall be prima facie evidence of the abandonment
and
termination of any water right.
Sec. 8. On and after July 1, 1999,
K.S.A. 82a-724 is hereby amended
to read as follows: 82a-724. Any order pursuant to section 10
and amend- ments thereto upon review of any action of the chief
engineer pursuant
to K.S.A. 82a-704a, 82a-708b, 82a-711 or 82a-718, and
amendments
thereto, is subject to review in accordance with the act for
judicial review
and civil enforcement of agency actions.
Sec. 9. On and after July 1, 1999,
K.S.A. 82a-1038 is hereby amended
to read as follows: 82a-1038. (a) In any case where the chief
engineer
finds that any one or more of the circumstances set forth in K.S.A.
82a-
1036 and amendments thereto exist and that the public interest
requires
that any one or more corrective controls be adopted, the chief
engineer
shall designate, by order, the area in question, or any part
thereof, as an
intensive groundwater use control area.
(b) The order of the chief engineer shall
define specifically the
boundaries of the intensive groundwater use control area and shall
indi-
cate the circumstances upon which the findings of the chief
engineer are
made. The order of the chief engineer may include any one or more
of
the following corrective control provisions: (1) A provision
closing the
intensive groundwater use control area to any further appropriation
of
groundwater in which event the chief engineer shall thereafter
refuse to
accept any application for a permit to appropriate groundwater
located
within such area; (2) a provision determining the permissible total
with-
drawal of groundwater in the intensive groundwater use control area
each
day, month or year, and, insofar as may be reasonably done, the
chief
engineer shall apportion such permissible total withdrawal among
the
valid groundwater right holders in such area in accordance with the
rel-
ative dates of priority of such rights; (3) a provision reducing
the permis-
sible withdrawal of groundwater by any one or more
appropriators
thereof, or by wells in the intensive groundwater use control area;
(4) a
provision requiring and specifying a system of rotation of
groundwater
use in the intensive groundwater use control area; (5) any one or
more
other provisions making such additional requirements as are
necessary to
protect the public interest. The chief engineer is hereby
authorized to
delegate the enforcement of any corrective control provisions
ordered for
an intensive groundwater use control area to groundwater
management
district number 4 or to any city, if such district or city is
located within
or partially within the boundaries of such area.
(c) Except as provided by subsection
(d), the order of designation of
an intensive groundwater use control area shall be in full force
and effect
from the date of its entry in the records of the chief engineer's
office
unless and until its operation shall be stayed by an appeal
therefromfrom an order entered on review of the chief engineer's order
pursuant to sec- tion 10 and amendments thereto in accordance with the
provisions of the
act for judicial review and civil enforcement of agency actions.
The chief
engineer upon request shall deliver a copy of such order to any
interested
person who is affected by such order, and shall file a copy of the
same
with the register of deeds of any county within which such
designated
control area lies.
(d) If the holder of a groundwater
right within the area designated as an intensive groundwater use control area applies for review
of the order of designation pursuant to section 10 and amendments
thereto, the provisions of the order with respect to the inclusion of the
holder's right within the area may be stayed in accordance with the Kansas
adminis- trative procedure act.
New Sec. 10. (a) Orders of the
chief engineer of the division of water
resources of the department of agriculture pursuant to K.S.A.
42-703, 42-
722, 42-722a, 82a-708b, 82a-711, 82a-718 and 82a-1038, and
amend-
ments thereto, and failure of the chief engineer to act pursuant to
K.S.A.
82a-714, and amendments thereto, shall be subject to review in
accord-
ance with the provisions of the Kansas administrative procedure
act.
Such review shall be conducted by the
secretary of agriculture or by
an administrative law judge or presiding officer from the office of
admin-
istrative hearings within the department of administration. The
secretary
of agriculture shall not have the authority otherwise to designate
a pre-
siding officer to conduct such review.
(b) The order of the secretary of
agriculture or the administrative law
judge or presiding officer upon review pursuant to subsection (a)
shall be
a final order under the Kansas administrative procedure act. Such
order
shall not be subject to reconsideration pursuant to K.S.A. 77-529
and
amendments thereto and shall be subject to review in accordance
with
the act for judicial review and civil enforcement of agency
actions.
(c) This act shall not affect any
administrative proceeding pending
before the chief engineer of the division of water resources of the
de-
partment of agriculture, the secretary of agriculture or any
administrative
hearing officer on July 1, 1999, and such matter shall proceed as
though
no change in the law had been made with regard to such
proceeding.
(d) The provisions of this section shall
take effect on and after July
1, 1999.
New Sec. 11. (a) The office of
administrative hearings within the
department of administration shall contract with or employ
administrative
law judges or presiding officers, court reporters and other support
per-
sonnel as necessary to conduct proceedings required by section 10
and
amendments thereto. Any administrative law judge or presiding
officer
contracted with or employed to conduct such proceedings shall be
ad-
mitted to practice law in this state and shall be knowledgeable by
training
and experience in water policies and administrative procedure. For
the
purposes of this section, the office may employ regular part-time
person-
nel. Persons employed by the office of administrative hearings
pursuant
to this section shall be under the classified civil service.
(b) The office of administrative hearings
within the department of
administration may establish and collect reasonable amounts for
services
provided pursuant to this section.
New Sec. 12. (a) (1) On or before
November 15, 1999, the chief
engineer of the division of water resources of the department of
agricul-
ture, in accordance with K.S.A. 77-420 and amendments thereto,
shall
submit to the secretary of administration and the attorney general
pro-
posed rules and regulations containing all current standards,
statements
of policy and general orders that: (A) Have been issued or adopted
by
the chief engineer; (B) are of general application and have the
effect of
law; and (C) are not contained in current rules and regulations
adopted
by the chief engineer.
(2) If any standard, statement of policy
or general order described in
subsection (a) (1) is not submitted as required by subsection (a),
such
standard, statement of policy or general order shall be void and of
no
effect after November 15, 1999, until adopted by rules and
regulations.
(b) (1) On or before March 1, 2000,
each groundwater management
district shall submit to the chief engineer of the division of
water re-
sources of the department of agriculture recommended rules and
regu-
lations containing all current standards, statements of policy and
general
orders that: (A) Have been issued or adopted by such district; (B)
are of
general application within the district and have the effect of law;
and (C)
are not contained in current rules and regulations adopted by the
chief
engineer.
(2) If any standard, statement of policy
or general order described in
subsection (b)(1) is not submitted as required by that subsection,
such
standard, statement of policy or general order shall be void and of
no
effect after March 1, 2000, until adopted by rules and
regulations.
New Sec. 13. The chief engineer of
the division of water resources
of the department of agriculture, for good cause shown, may grant
an
exemption from or waiver of a rule and regulation adopted by the
chief
engineer if the chief engineer determines that the exemption or
waiver
will not prejudicially or unreasonably affect the public interest
and will
not impair any existing water right. The exemption or waiver shall
be in
writing and shall include the reason for the exemption or
waiver.
New Sec. 14. Before any proposed
rules and regulations of the chief
engineer of the division of water resources of the department of
agricul-
ture are submitted to the secretary of administration or the
attorney gen-
eral pursuant to K.S.A. 77-420, and amendments thereto:
(a) The chief engineer shall submit such
rules and regulations to the
secretary of agriculture; and
(b) the secretary of agriculture shall
review and make recommenda-
tions to the chief engineer regarding such proposed rules and
regulations.
New Sec. 15. (a) The Kansas water
authority shall study and develop
recommendations related to:
(1) The appropriateness of the procedures
and the time required for
perfection of water rights and other provisions of and procedures
under
the Kansas water appropriation act;
(2) siltation rates of public water
supply impoundments and reser-
voirs and the impacts of such siltation on public water supply
storage,
flood control and recreational opportunities;
(3) aquifer resources, recharge rates,
availability of surface water re-
sources and the long-term prospects related to any necessary
transition
to dryland farming in areas of the state to maintain sustainable
yield and
minimum streamflow levels;
(4) water conservation plans and programs
and means to improve the
effectiveness of such plans and programs; and
(5) the potential for competing water
needs for at least the next 20
years and means of addressing the competition.
(b) On or before January 8, 2001, the
Kansas water authority shall
submit to the house standing committee on environment, the
senate
standing committee on energy and natural resources and the house
and
senate standing committees on agriculture a report of the
authority's find-
ings and recommendations regarding matters studied pursuant to
this
section.
Sec. 16. On and after July 1, 1999, K.S.A. 42-703,
42-722, 72-722a,
82a-708b, 82a-711, 82a-714, 82a-718, 82a-724 and 82a-1038 are
hereby
repealed.
Sec. 17. This act shall take effect and be in
force from and after its
publication in the Kansas register.
Approved April 25, 1999.
Published in the Kansas Register May 6, 1999.