CHAPTER 138 SENATE BILL No. 436 An Act concerning dams, levees and other water obstructions; fees; inspections; amending
K.S.A. 24-126, 82a-301, 82a-302 and 82a-303b and repealing the existing sections; also
repealing K.S.A. 82a-304.
Be it enacted by the Legislature of the State of Kansas:

      Section  1. K.S.A. 24-126 is hereby amended to read as follows: 24-
126. (a) It shall be unlawful for any person, corporation, drainage or levee
district, county, city or township, without first obtaining the approval of
plans for the same by the chief engineer of the division of water resources,
to construct, cause to be constructed, maintain or cause to be maintained,
any levee or other such improvement on, along or near any stream of this
state which is subject to floods, freshets or overflows, so as to control,
regulate or otherwise change the flood waters of such stream. Any person,
corporation, county, city, township or district violating any provision of
this act shall be deemed guilty of a misdemeanor, and upon conviction
shall be punished by a fine of not less than $100 nor more than $1,000,
or by imprisonment in the county jail for a period of not more than one
year, or by both such fine and imprisonment. Each day any structure is
maintained or caused to be maintained shall constitute a separate offense.

      (b) Subject to the provisions of subsection (c) (e), plans submitted for
approval shall include maps, profiles, cross sections, data and information
as to the effect upon upstream and downstream areas resulting from the
proposed levee or other such improvement, the required fee as provided
in subsection (c) and such other data and information as the chief engineer
of the division of water resources may require.

      (c)  (1) Fill and levee approval fees shall be as follows:

Type		Pre-Construction	Construction In Progress
Major	(Fill in defined floodway class C levee)	$500	$1000
Moderate	(Fill in flood plain without defined floodway class B levee)	$300	$600
Minor	(Fill in floodway fringe class A levee)	$100	$200

      (2) The construction in progress fee shall be applicable for projects
where construction began prior to approval by the chief engineer. Such
fee shall be in addition to any other penalty under law for unapproved
fill or levee construction. Projects that require approval under both this
act and obstructions in streams act, K.S.A. 82a-301 et seq., and amend-
ments thereto, shall be required to pay only the greater of the two fees
when seeking approval from the chief engineer.

      (d) If the chief engineer finds from an examination of such plans and
pertinent information that the construction of the proposed levee or other
such improvement is feasible and not adverse to the public interest, the
chief engineer shall approve the same proposed levee or other such im-
provement. In determining whether or not the construction of any pro-
posed levee or other such improvement designed so as to reduce flood
risks to a chance of occurrence in any one year of 1% or less is adverse
to the public interest, the chief engineer shall consider the following: (1)
The effect upon areas downstream or upstream as a result of the con-
struction of such proposed levee or other such improvement; and (2) the
effect of the proposed levee or other such improvement and any other
existing or proposed levees or other such improvements upon down-
stream and upstream areas. In the event any such levee or other such
improvement is about to be constructed, is constructed or maintained by
any person, corporation, county, city, township or district without ap-
proval of plans by the chief engineer, it shall be the duty of the attorney
general, to file suit in a court of competent jurisdiction, to enjoin the
construction or maintenance of such levee or other such improvement.

      (c) (e) For fills other than levees located in the floodway fringe within
a participating community as defined and identified in the national flood
insurance act, all required data and information shall be specified by rules
and regulations adopted by the chief engineer. Within 90 days of receipt
of plans and such data and information as required by the chief engineer
for fills other than levees located in the floodway fringe within a partici-
pating community as defined and identified by the national flood insur-
ance act, the chief engineer shall approve or disapprove the plans for such
fills. If the chief engineer fails to approve or disapprove a plan within the
ninety-day 90-day period required by this section, such plan shall be
deemed approved. The chief engineer shall provide, in writing, specific
reasons for any disapproval which shall include any hydrologic and hy-
draulic analyses or other data upon which such disapproval is based.

      (d) (f) Prior to the adoption of a general plan of drainage and flood
protection, as provided in K.S.A. 24-901, and amendments thereto, and
the commencement of construction in carrying such plan into effect, the
chief engineer of the division of water resources may give temporary
approval for the repair and maintenance of any levee or other drainage
work in existence on May 28, 1929; but such approval for such temporary
repair and maintenance shall be without prejudice to withdrawal of such
approval when a general plan shall be adopted. Nothing contained in this
section shall apply to any drainage district heretofore organized under
K.S.A. 24-401 et seq., and amendments thereto, and having therein prop-
erty of an assessed valuation of $50,000,000 or more.

      (e) (g) The chief engineer shall adopt such rules and regulations
deemed necessary to administer and enforce the provisions of this section.

      (h) All fees collected by the chief engineer pursuant to this section
shall be remitted to the state treasurer as provided in section 5, and
amendments thereto.

      Sec.  2. K.S.A. 82a-301 is hereby amended to read as follows: 82a-
301. (a) Without the prior written consent or permit of the chief engineer
of the division of water resources of the state board Kansas department
of agriculture, it shall be unlawful for any person, partnership, association,
corporation or agency or political subdivision of the state government to:
(a) (1) Construct any dam or other water obstruction, (b); (2) make, con-
struct or permit to be made or constructed any change in any dam or
other water obstruction, (c); (3) make or permit to be made any change
in or addition to any existing water obstruction,; or (d) (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.

      (b) As used in K.S.A. 82a-301 et seq., and amendments thereto, ``dam''
means any artificial barrier including appurtenant works with the ability
to impound water, waste water or other liquids that has a height of 25
feet or more; or has a height of six feet or greater and also has the capacity
to impound 50 or more acre feet. The height of a dam or barrier shall be
determined as follows: (1) A barrier or dam that extends across the natural
bed of a stream or watercourse shall be measured from the down stream
toe of the barrier or dam to the top of the barrier or dam; or (2) a barrier
or dam that does not extend across a stream or watercourse shall be
measured from the lowest elevation of the outside limit of the barrier or
dam to the top of the barrier or dam.

      Sec.  3. K.S.A. 82a-302 is hereby amended to read as follows: 82a-
302. (a) Each application for the consent or permit required by K.S.A.
82a-301, and amendments thereto, shall be accompanied by complete
maps, plans, profiles and specifications of such dam or other water ob-
struction, or of the changes or additions proposed to be made in such
dam or other water obstruction, the required application fee as provided
in subsection (b) unless otherwise exempted, and such other data and
information as the chief engineer may require. The chief engineer shall
maintain a list of licensed professional engineers who may conduct the
review of any application for the consent or permit required by K.S.A.
82a-301, and amendments thereto. Such list may include licensed profes-
sional engineers employed by a local unit of government. Notwithstanding
any law to the contrary, an applicant for the consent or permit required
by K.S.A. 82a-301, and amendments thereto, may have the application
reviewed by a licensed professional engineer approved by the chief en-
gineer pursuant to this subsection provided such engineer is not an em-
ployee of the applicant. If such licensed professional engineer finds that
such dam or other water obstruction meets established standards for the
construction, modification, operation and maintenance of dams and other
water obstructions, such findings shall be submitted in complete form to
the chief engineer. Upon such submittance, the chief engineer shall grant
such consent or permit within 45 days unless the chief engineer finds to
the contrary that such dam or other water obstruction does not meet
established standards for the construction, modification, operation and
maintenance of dams and other water obstructions. If the chief engineer
declines to grant such consent or permit based upon a contrary finding,
the chief engineer shall provide to the applicant within 15 days a written
explanation setting forth the basis for the chief engineer's contrary finding.
The chief engineer's action in declining to grant such consent or permit
and any hearing related thereto shall be conducted in accordance with
the provisions of the Kansas administrative procedure act. Any person
aggrieved by any order or decision of the chief engineer shall be entitled
to appellate review in accordance with the provisions of the act for judicial
review and civil enforcement of agency actions. Such applicant shall pay
all costs associated with the review by the licensed professional engineer.

      (b)  (1) The application shall be based upon the stage of construction
at the time that a complete application has been submitted. The construc-
tion in progress fee shall be applicable for construction begun prior to
approval by the chief engineer. Such fee shall be in addition to any other
penalty for an unpermitted structure. Such fees shall be as follows:

Fees for new dam or dam modification applications

Pre-Construction	Construction In Progress
$200	$500

      (2) Permit fees for stream obstructions/channel changes application
fee is based upon two criteria and are as follows:

      (A) The drainage area category; and

      (B) the stage of construction when the application is submitted.

Drainage Area Category	Pre-Construction	Construction In Progress
Major (Drainage area greater than 50 square miles)	$500	$1000
Moderate (Drainage area 5 to 50 square miles)	$200	$400
Minor (Drainage area less than 5 square miles)	$100	$200
General Permit	$100	$200

      (c) All fees collected by the chief engineer pursuant to this section
shall be remitted to the state treasurer as provided in section 5, and
amendments thereto.

      Sec.  4. K.S.A. 82a-303b is hereby amended to read as follows: 82a-
303b. (a)  (1) In order to secure conformity with adopted rules and reg-
ulations and to assure compliance with the terms, conditions or restric-
tions of any consent or permit granted pursuant to the provisions of K.S.A.
82a-301 to through 82a-303, inclusive, and any amendment thereof and
amendments thereto, the chief engineer or an authorized representative
of the chief engineer shall have the power and it shall be his or her the
duty to inspect any dam or other water obstruction. Upon a finding pur-
suant to subsection (a) of K.S.A. 82a-303c, and amendments thereto, by
the chief engineer that a dam is unsafe, the chief engineer shall order an
annual inspection of the dam until it is either in compliance with all
applicable provisions of this act, any rules and regulations promulgated
pursuant to this act, permit conditions and orders of the chief engineer;
or the dam is removed. The safety inspection shall be conducted by the
chief engineer or authorized representative and the cost shall be paid by
the dam owner. The class and size of a dam provided for by the provisions
of this act shall be defined by rules and regulations adopted by the chief
engineer pursuant to K.S.A. 82a-303a, and amendments thereto. Inspec-
tion fees are as follows:

Size of Dam	Inspection fee
Class 1	$1,500
Class 2	$1,500
Class 3	$2,500
Class 4	$4,000.

      (2) Each hazard class C dam shall be required to have a safety in-
spection conducted by a licensed professional engineer qualified in design,
construction, maintenance and operation of dams once every three years,
unless otherwise ordered by the chief engineer.

      (3) Each hazard class B dam shall be required to have a safety in-
spection conducted by a licensed professional engineer qualified in design,
construction, maintenance and operation of dams once every five years
unless otherwise ordered by the chief engineer.

      (4) Within 60 days of the date of inspection, a report of the inspection
shall be provided to the chief engineer by the licensed professional engi-
neer who conducted the inspection. The report shall document the phys-
ical condition of the dam, describing any deficiencies observed, an analysis
of the capacity of the dam and its spillway works, compliance of the dam
with approved plans and permit conditions, changes observed in the con-
dition of the dam since the previous inspection, an assessment of the haz-
ard classification of the dam including a statement that the engineer either
agrees or disagrees with the current classification, and any other infor-
mation relevant to the safety of the dam or specifically requested by the
chief engineer.

      (5) Upon failure of a dam owner to comply with the applicable in-
spection interval, the chief engineer or such chief engineer's authorized
representative shall conduct a mandatory inspection of the dam and the
costs as established by this act for the inspection shall be paid by the
owner, in addition to any other remedies provided for violations of this
act.

      (6) The failure to file a complete and timely report as required by the
provisions of this act, or the failure to submit the fees assessed for in-
spections conducted by the chief engineer or such chief engineer's au-
thorized representative shall be deemed a violation of this act and subject
to the penalties provided by K.S.A. 82a-305a, and amendments thereto.

      (b) For the purpose of inspecting any dam or other water obstruction,
the chief engineer or an authorized representative of the chief engineer
shall have the right of access to private property. Costs for any work which
may be required by the chief engineer or the authorized representative
prior to or as a result of the inspection of a dam or other water obstruction
shall be paid by the owner, governmental agency or operator thereof of
such dam or other water obstruction.

      (c) All fees collected by the chief engineer pursuant to this section
shall be remitted to the state treasurer as provided in section 5, and
amendments thereto.

      New Sec.  5. There is hereby created in the state treasury the water
structures fund. The chief engineer of the division of water resources,
Kansas department of agriculture shall remit all moneys received under
K.S.A. 82a-302, 82a-303b and 24-126, and amendments thereto, to the
state treasurer in accordance with the provisions of K.S.A. 75-4215, and
amendments thereto. Upon receipt of each such remittance, the state
treasurer shall deposit the entire amount in the state treasury to the credit
of the water structures fund. All expenditures from the water structures
fund shall be made in accordance with appropriation acts upon warrants
of the director of accounts and reports issued pursuant to vouchers ap-
proved by the secretary of agriculture or by a person designated by the
secretary.

      New Sec.  6. On or before January 1, 2003, the secretary of agricul-
ture shall submit and present a report to the committee on agriculture of
the senate and house of representatives of the state of Kansas summariz-
ing the department's efforts to affect changes in the water structures
program, review of the structure of the water resources programs and
actions related to the recommendations of the performance audit report
of the legislative division of post audit submitted in March of 2002.

      New Sec.  7.  On or before January 1, 2003, the secretary of agricul-
ture and the chief engineer shall evaluate the department's current pol-
icies and present a report outlining the strengths and weaknesses of a
watershed approach to the permitting of proposed dams and other stream
obstructions. Such report shall include a review of its permittance pro-
cedure in this area to evaluate both upstream and downstream impacts
of the proposed stream obstruction. The chief engineer shall consult with
counties, cities and other stakeholders and shall hold at least two public
hearings as a component of the report development. The secretary and
chief engineer shall make recommendations to the legislature with regard
to clarifying the program's obligations to upstream and downstream land-
owners.

 Sec.  8. K.S.A. 24-126, 82a-301, 82a-302, 82a-303b and 82a-304 are
hereby repealed.

 Sec.  9. This act shall take effect and be in force from and after its
publication in the statute book.

Approved May 17, 2002.
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