Brief(1)
House Sub. for S.B. 287 would require that the orders of Chief Engineer of the Division of Water Resources and "failure to act" under K.S.A. 82a-714 be subject to review in accordance with the provisions of the Kansas Administrative Procedure Act. The bill would require that the review would be conducted by the Secretary of Agriculture or by an administrative law judge or presiding officer from the Office of Administrative Hearings within the Department of Administration. The Secretary of Agriculture would not have the authority to designate otherwise a presiding officer to conduct the review. These orders would be final orders under the Kansas Administrative Procedure Act. These orders could not be subject to reconsideration and would be subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions. These provisions would become effective on July 1, 1999.
The bill would require the Office of Administrative Hearings to select administrative law judges or presiding officers who are admitted to practice law in Kansas and are knowledgeable by training and experience in water polices and administrative procedures. The Office of Administrative Hearings would be authorized to establish and collect reasonable amounts for services.
In addition, the bill would require that on or before November 15, 1999, the Chief Engineer of the Division of Water Resources submit to the Secretary of Administration and the Attorney General proposed rules and regulations containing certain standards, statements of policy, and general orders. These standards, statements of policy, and general orders would be those that have been issued or adopted by the Chief Engineer; are of general application and have the effect of law; and are not contained in current rules and regulations adopted by the Chief Engineer. If any of these are not submitted as rules and regulations by November 15, 1999, then they would become void and of no effect until adopted by rules and regulations. This provision would become effective upon publication in the Kansas Register.
The bill also would require that on or before March 1, 2000, each groundwater management district submit to the Chief Engineer recommended rules and regulations containing all current standards, statements of policy, and general orders that have been issued or adopted by a district; are of general application within the district and have the effect of law; and are not contained in current rules and regulations adopted by the Chief Engineer. If any standard, statement of policy or general order is not submitted, the bill would make these void after March 1, 2000, until adopted by rules and regulations. This provision would become effective upon publication in the Kansas Register.
The bill also would permit the Chief Engineer, for good cause shown, to grant an exemption from or waiver of a rule and regulation adopted by the Chief Engineer if it is determined that the exemption or waiver will not prejudicially or unreasonably affect the public interest and will not impair any existing water right. This provision would become effective upon publication in the Kansas Register.
Further, the bill would establish a 19-member Task Force on Water Issues. The Task Force would have the following membership:
The Legislative Coordinating Council would designate two legislative members of the Task Force to serve as chairperson and vice-chairperson.
The Task Force would study and make recommendations related to:
The Task Force would submit a report of its findings and recommendations to the House Environment Committee, the Senate Energy and Natural Resources Committee, and the Senate and House Agriculture Committees on or before January 10, 2000.
In addition, the Task Force would study and make recommendations by January 8, 2001, on the following:
The Task Force would submit its 2001 report in the same manner as its 2000 report. The Task Force would be abolished on and after July 1, 2001.
The provisions of the bill relating to the creation of the Task Force would become effective upon publication in the Kansas Register.
Finally, the bill would amend a section of law dealing with the certification of a water right. The bill would stipulate that not later than 60 days before the expiration of the time allowed in the permit to complete the construction of the diversion works or the time allowed in the permit to actually apply water, the Chief Engineer notify the permit holder by certified mail that any extension of time to perfect the right must be filed with the Chief Engineer before the expiration of the time allowed in the permit. 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 opportunity to examine and inspect the works, the Chief Engineer would be required to certify an appropriation before July 1, 2004, if the time allowed in the permit to perfect the water right expired prior to July 1, 1999 or not later than five years after the date of notification from the applicant of the completion of the construction of the works and the actual application of water to the proposed beneficial use in all other cases. If the Chief Engineer fails to issue the certificate of appropriation, the applicant may appeal, in accordance with the provisions of the Kansas Administrative Procedure Act, the Chief Engineer's failure to act. These provisions would take effect upon publication in the Kansas Register.
Background
Appearing in support of the bill before the Senate Agriculture Committee was a spokesperson for the Kansas Department of Agriculture and a representative of the Kansas Building Industry Association. Opponents included an individual from Overland Park and a representative of the Water Protection Association of Central Kansas.
The fiscal note on the original bill states that any monetary impact on the Department of Agriculture could be absorbed within current budgetary resources.
The House Environment Committee had numerous conferees on this bill. The Chairperson of the Committee appointed a subcommittee to address the concerns of conferees. The subcommittee recommended the adoption of a substitute bill. The House Committee on Environment adopted the substitute bill recommended by the subcommittee. The bill would outline the process for the appeal of order of the Chief Engineer and would address the "failure to act" by the Chief Engineer under the section of law dealing with the certification of water rights. In addition, the bill would establish a task force to study water issues in 1999 and 2000, and would require reports by that task force in 2000 and 2001. Finally, the bill would establish a process for the certification of water rights.
The House on Final Action amended the bill by requiring the current standards, statements of policy, and general orders of groundwater management districts that have been issued or adopted; are of general application and have the effect of law; and are not contained in current rules and regulations adopted by the Chief Engineer to be submitted to the Chief Engineer as recommended rules and regulations by March 1, 2000. If these standards, statements of policy, or general orders are not submitted as required, then they would become void after March 1, 2000, until adopted by rules and regulations.
1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/bill_search.html