Session Law

Identifying Information:L. 2001 ch. 160
Other Identifying Information:2001 Senate Bill 237
Tax Type:Other
Brief Description:An Act relating to water; concerning water rights; enacting the Kansas water banking act; relating to jurisdiction over certain matters; supplementing the Kansas water appropri- ation act; providing civil penalties for certain violations of laws and orders, terms, con- ditions and limitations relating thereto; providing for certain accounts for deposit of certain water under a water right; providing for term permits for use of such water, less a conservation element; relating to certain fees and charges; amending K.S.A. 82a-708a and 82a-1030 and K.S.A. 2000 Supp. 65-171d and repealing the existing sections.
Keywords:


Body:

CHAPTER 160

SENATE BILL No. 237


An Act relating to water; concerning water rights; enacting the Kansas water banking act;

relating to jurisdiction over certain matters; supplementing the Kansas water appropri-

ation act; providing civil penalties for certain violations of laws and orders, terms, con-

ditions and limitations relating thereto; providing for certain accounts for deposit of

certain water under a water right; providing for term permits for use of such water, less

a conservation element; relating to certain fees and charges; amending K.S.A. 82a-708a

and 82a-1030 and K.S.A. 2000 Supp. 65-171d and repealing the existing sections.




Be it enacted by the Legislature of the State of Kansas:

New Section 1. (a) Sections 1 through 13, and amendments thereto,

may be cited as the Kansas water banking act.

(b) Implementation of the provisions of the water banking act shall

be subject to the availability of appropriations for that purpose.

New Sec. 2. As used in this act:

(a) ``Bank boundary'' means the geographic area where a water bank

operates and conducts the functions of a water bank and may encompass

more than one hydrologic unit.

(b) ``Bank charter'' means a document that sets out the articles of

incorporation and principal functions of a water bank.

(c) ``Bankable water right'' means a water right that has been deter-

mined pursuant to section 4, and amendments thereto, to be bankable.

(d) ``Chief engineer'' means the chief engineer of the division.

(e) ``Conservation element'' means the portion of a deposit that is

taken out of use for the duration of the deposit and is not allowed to be

withdrawn and used by subsequent users.

(f) ``Deposit,'' other than as used in ``safe deposit account,'' refers to

the deposit of a water right, or portion of a water right, in a water bank

for the purpose of having the bank lease water from such water right, or

portion of a water right, to another person or entity.

(g) ``Division'' means the division of water resources of the Kansas

department of agriculture.

(h) ``Hydrologic unit'' means a defined area from which water rights

authorizing diversion of water from a source of supply may be deposited

and from which water from the same source of supply may be leased, in

accordance with the provisions of this act, without causing impairment of

existing water rights or a significantly different hydrological effect to other

users of water from the same source or hydraulically connected sources

of supply.

(i) ``Linked water rights'' means two or more water rights that au-

thorize common points of diversion or a common place of use, or both.

(j) ``Safe deposit account'' means a personal account held in a water

bank where unused water from a bankable water right is placed for use

in future years.

(k) ``Term permit'' means a permit to appropriate water for a speci-

fied period of time.

(l) ``Water bank'' means a private not-for-profit corporation that: (1)

Leases water from water rights that have been deposited in the bank; and

(2) provides safe deposit accounts. A water bank may be a groundwater

bank or a surface water bank, or both.

New Sec. 3. (a) A water bank shall be authorized to enter into con-

tracts with holders of water rights for deposit in the bank of all or a portion

of any water right from a hydrologic unit within the bank boundary, sub-

ject to the following:

(1) The bank shall accept for deposit only a water right, or portion of

a water right, that has been determined to be a bankable water right under

section 4, and amendments thereto;

(2) a deposit of a groundwater water right shall be for a period of not

more than five years;

(3) a deposit shall be subject to such terms and conditions as provided

by the contract between the bank and the depositor, including penalty

provisions for breach of any contract conditions; and

(4) a deposit shall be subject to such terms and conditions, and such

approval by the chief engineer, as provided by rules and regulations of

the chief engineer.

(b) A water bank shall be authorized to lease water from any water

right, or portion of a water right, that has been deposited in the bank,

subject to the following:

(1) Any water leased must be used within the bank boundary and in

the same hydrologic unit from which the water right authorizing diversion

of the water is deposited;

(2) use of leased water shall be subject to all provisions of the Kansas

water appropriation act, including but not limited to all requirements

relating to term permits;

(3) a lease shall be subject to such terms and conditions as provided

by the contract between the bank and the lessor, including penalty pro-

visions for breach of any contract conditions;

(4) a lease shall be subject to such terms and conditions, and such

approval by the chief engineer, as provided by rules and regulations of

the chief engineer; and

(5) a water bank's decision of whether or not to lease water shall not

be based on the proposed use of the water.

(c) A water bank shall provide safe deposit accounts where a holder

of a water right may place unused water from the water right for future

withdrawal, subject to the following:

(1) A water right holder shall place in a safe deposit account only

water from a water right that has been determined to be a bankable water

right under section 4 and amendments thereto;

(2) only water that was unused in the immediate past calendar year

may be placed in a safe deposit account and the amount that shall be

placed in such account shall be less than the total amount of unused water

from the bankable water right in that year;

(3) only water from one water right shall be placed in a safe deposit

account and water from a water right shall not be placed in more than

one safe deposit account, except that water from linked water rights may

be placed in a single safe deposit account;

(4) each calendar year that water remains in a safe deposit account,

the amount of water held in the account shall decrease by a percentage

established by the charter of the bank but in no case less than 10% an-

nually of all amounts placed in the account;

(5) the total amount of water accumulated in a safe deposit account

shall not exceed the maximum annual quantity authorized to be diverted

under the water right or the aggregate maximum quantity authorized to

be diverted under all linked water rights from which water is deposited

in the account;

(6) use of water withdrawn from a safe deposit account shall be sub-

ject to all provisions of the Kansas water appropriation act, including but

not limited to all requirements relating to term permits;

(7) a safe deposit account shall be subject to such terms and condi-

tions as provided by the contract between the bank and the account

holder, including penalty provisions for breach of any contract conditions;

(8) a safe deposit account shall be subject to such terms and condi-

tions, and such approval by the chief engineer, as provided by rules and

regulations of the chief engineer; and

(9) the operation of safe deposit accounts by the bank shall not result

in an increase in the amount of net consumptive use of water in any

hydrologic unit, computed on a long-term rolling average compared to a

representative past period.

(d) A water bank may provide services to facilitate the sale or lease

of water rights.

(e) A water bank shall not own, buy or sell water rights.

New Sec. 4. Before a water right or portion of a water right shall be

accepted for deposit in a water bank or water from a water right shall be

placed in a safe deposit account, the bank, with the assistance of the

division, shall determine whether the water right is bankable, as follows:

(a) The right is vested or has been issued a certificate of appropriation;

and (b) the right has not been abandoned and is in good standing, based

on past water usage and compliance with the terms of the holder's permit

and all applicable provisions of law and orders of the chief engineer.

New Sec. 5. (a) Before a water bank is authorized to operate in the

state, the bank's charter must be approved by the chief engineer. Prior

to approval, the body wishing to charter the bank shall submit to the chief

engineer the proposed bank charter and any other information required

by rules and regulations of the chief engineer to determine whether the

bank shall be chartered to operate in the state.

(b) The chief engineer shall approve the charter of a water bank only

if the chief engineer determines that:

(1) The charter ensures that the operations and policies of the bank

will be consistent with the provisions of this act, the state water plan and

all applicable statutes, rules and regulations, findings and orders of the

chief engineer, groundwater management district policies and water as-

surance district operations plans;

(2) there is sufficient participation by water right holders and water

users to make the operations of the bank practical and feasible;

(3) the governing body of the bank has at least five members and is

reasonably representative of public and private interests in water within

the bank boundary;

(4) the bank would not lease or accept for placement in a safe deposit

account water from the same hydrologic unit as another chartered bank

or accept for deposit a water right that authorizes diversion of water from

the same hydrologic unit as another chartered water bank;

(5) the charter ensures that, for each calendar year, the aggregate

amount of all bank deposits (determined by multiplying the amount of

each water right deposited by the length of time of the deposit and then

adding together the resulting amounts for all deposits) will equal or ex-

ceed the sum of the aggregate amount of water leased by the bank (de-

termined by multiplying the amount of each lease by the length of time

of the lease and then adding together the resulting amounts for all leases)

plus the aggregate conservation element of all leases (determined by mul-

tiplying the conservation element of each lease by the length of the lease

and then adding together the resulting amounts for all leases);

(6) the charter ensures that the operations of the bank will not result

in impairment of existing water rights or an increase in depletion of se-

verely depleted groundwater aquifers or stream courses;

(7) the charter ensures that the operations of the bank will result in

a savings of 10% or more in the total amount of groundwater consumed

for a representative past period pursuant to water rights deposited in the

bank, excluding groundwater located in an intensive groundwater use

control area where corrective control provisions have reduced the allo-

cation of groundwater to less than the quantity previously authorized by

water rights in the area;

(8) the charter provides a procedure for resolution of complaints by

bank participants and others impacted by the bank policies, practices and

operations;

(9) the charter ensures that the determination of the portion of a

water right that is bankable shall be subject to the following:

(A) The determination shall be primarily based on a representative

period of average water consumption for the hydrologic unit from which

water is authorized to be diverted under the water right; and

(B) the method of determination shall not penalize past implemen-

tation of water conservation practices;

(10) the charter ensures that the total amount of groundwater leased

each year from each hydrologic unit does not exceed 90% of the historic

average annual amount collectively diverted pursuant to all deposited wa-

ter rights or portions of water rights from such unit for a representative

past period; and

(11) the charter provides a procedure for the dissolution of the bank,

specifically stating how the remaining deposits and safe deposit accounts

will be distributed.

(c) Prior to July 1, 2002, not more than one water bank shall be

chartered to operate in the state. Such water bank shall be a groundwater

bank. On or after July 1, 2002, one additional water bank may be char-

tered to operate in the state. Such water bank shall be a surface water

bank or a surface water and groundwater bank.

(d) A water bank shall be chartered for a period of not more than

seven years, at which time the bank shall be subject to review in accord-

ance with section 7, and amendments thereto, to determine whether the

bank's charter shall be extended.

(e) Any amendment to the charter of a water bank must be approved

by the chief engineer prior to adoption of the amendment.

New Sec. 6. (a) On or before February 10 of each year, each water

bank shall submit to the chief engineer a report containing the following:

(1) With regard to water rights or portions of water rights on deposit

in the bank during the last year: (A) The total quantity of water authorized

to be diverted annually pursuant to each such water right or portion of a

water right; (B) the total quantity of water used, by purpose of use, and

acres irrigated for the portion authorized to be used for irrigation, during

the last year as a result of leases of such water rights or portions of water

rights; and (C) the total quantity of water used, by purpose of use, and

acres irrigated for the portion authorized for irrigation pursuant to such

water rights or portions of water rights during the two years preceding

the last year; and

(2) with regard to water in each safe deposit account in the bank: (A)

An accounting of the total quantity of water placed in such accounts dur-

ing the past year and a balance at year end; (B) the total quantity of water

used during the past year, and acres irrigated if an irrigation water right,

from the account; (C) the total quantity of water authorized to be diverted

annually, the quantity actually used and the acres irrigated, if an irrigation

water right, during the past year pursuant to the water rights or linked

water rights related to such account; and (D) the total quantity of water

used and acres irrigated pursuant to such water rights during the two

years preceding the last year.

(b) The chief engineer may require owners of water rights deposited

in a water bank, owners of water rights that have placed water in safety

deposit accounts in a water bank and persons leasing water from a water

bank to file annual water use reports at a date earlier than that provided

by K.S.A. 82a-732, and amendments thereto.

(c) The report required by this section shall be in the form prescribed

by the chief engineer.

New Sec. 7. (a) Not later than five years after the establishment of

a water bank, the director of the Kansas water office shall convene a team

to evaluate the operation of the bank. The team shall consist of:

(1) The director of the Kansas water office, or the director's designee,

who shall serve as chairperson of the team;

(2) the director of the Kansas geological survey, or the director's des-

ignee;

(3) two members who represent water right holders and water users

who have used the bank's services, which members shall be selected by

the governing body of the bank;

(4) members selected by the chief engineer as follows: (A) Two mem-

bers engaged in teaching or research at institutions of postsecondary ed-

ucation in subjects involving water resources, including but not limited

to water resources engineering and hydrology; (B) a member who is an

economist with knowledge and experience in water resources; (C) one

member having knowledge and experience in water law; and (D) two

members having knowledge and experience in water policy issues and

residing outside the bank boundary, who shall represent the public in-

terest;

(5) one representative of each groundwater management district lo-

cated in whole or in part within the bank boundary selected by the board

of directors of such district; and

(6) one representative of each water assurance district located in

whole or in part within the bank boundary selected by the board of di-

rectors of such district.

(b) The staff of the Kansas water office shall provide staff assistance

to the evaluation team.

(c) Not more than one year after a team is convened pursuant to this

section, the team shall submit a report of its evaluation and recommen-

dations to the governor, the Kansas water office, the Kansas water au-

thority, the secretary of agriculture, the chief engineer and the senate

standing committee on natural resources and the house standing com-

mittee on environment, or the successors to such committees regarding:

(1) The operations and policies of the bank and whether they are

consistent with the provisions of this act, the state water plan and all

applicable statutes, rules and regulations, findings and orders of the chief

engineer, groundwater management district policies and water assurance

district operations plans;

(2) whether the operations of the bank are achieving the goals and

objectives of water banking as set out in the state water plan and whether

changes could be made to further those goals and objectives;

(3) whether the charter of the bank should be extended;

(4) the terms under which the bank's charter should be allowed to

lapse, if the team recommends that the charter not be extended;

(5) the bank's impact on the entire area of all hydrologic units any

parts of which are encompassed in the bank's boundary; and

(6) any other matters that the team determines relevant to the future

of water banking in the state.

(d) Unless otherwise provided by law, the chief engineer, in accord-

ance with the recommendations of the team, may extend the charter of

the bank for an additional period not to exceed seven years or may allow

the bank charter to lapse under the terms recommended by the team.

New Sec. 8. Depositing a water right in a water bank or placement

of water in a safe deposit account in a water bank shall constitute due

and sufficient cause pursuant to K.S.A. 82a-718, and amendments

thereto, for failure to use water for a lawful, beneficial use for the term

of the deposit or the placement.

New Sec. 9. The chief engineer may adopt rules and regulations to

administer and enforce the provisions of this act.

New Sec. 10. (a) In addition to any other provision of this act or the

Kansas water appropriation act, and subject to the provisions of subsec-

tion (b), the chief engineer may suspend the use of water under a term

permit, an approved application for a permit to appropriate water for

beneficial use, an appropriation right or a vested right, acquired pursuant

to the provisions of the Kansas water appropriation act, for the failure to

comply with the provisions of this act. The suspension may be for a de-

fined period in a subsequent calendar year or years but does not include

or prevent the enforcement of the terms, conditions and limitations of a

water right or permit during the current year of use.

(b) The chief engineer shall suspend the use of water under a permit

or water right pursuant to subsection (a) only upon notice and hearing in

accordance with the provisions of the Kansas administrative procedure

act.

(c) Orders of the chief engineer issued pursuant to this section are

subject to review in accordance with the provisions of K.S.A. 2000 Supp.

82a-1901, and amendments thereto.

New Sec. 11. Each water bank shall pay all costs incurred by the

division and by the Kansas water office for assistance and services pro-

vided pursuant to this act, including, but not limited to, costs for person-

nel necessary to provide such assistance and services.

New Sec. 12. (a) There is hereby created in the state treasury the

water resources cost fund. The chief engineer shall remit to the state

treasurer in accordance with the provisions of K.S.A. 75-4215, and

amendments thereto, all moneys received by the division to reimburse

costs as required by section 11, and amendments thereto. Upon receipt,

the state treasurer shall deposit the entire amount in the state treasury

and credit it to the water resources cost fund.

(b) Moneys in the water resources cost fund shall be expended only

for the division's costs of providing assistance and services as provided by

this act.

(c) On or before the 10th of each month, the director of accounts

and reports shall transfer from the state general fund to the water re-

sources cost fund interest earnings based on:

(1) The average daily balance of moneys in the water resources cost

fund for the preceding month; and

(2) the net earnings rate for the pooled money investment portfolio

for the preceding month.

(d) All expenditures from the water resources cost fund shall be made

in accordance with appropriation acts upon warrants of the director of

accounts and reports issued pursuant to vouchers approved by the chief

engineer for the purposes set forth in this section.

New Sec. 13. (a) There is hereby created in the state treasury the

water office cost fund. The director of the Kansas water office shall remit

to the state treasurer in accordance with the provisions of K.S.A. 75-4215,

and amendments thereto, all moneys received by the water office to re-

imburse costs as required by section 11, and amendments thereto. Upon

receipt, the state treasurer shall deposit the entire amount in the state

treasury and credit it to the water office cost fund.

(b) Moneys in the water office cost fund shall be expended only for

the Kansas water office's costs of providing assistance and services as

provided by this act.

(c) On or before the 10th of each month, the director of accounts

and reports shall transfer from the state general fund to the water office

cost fund interest earnings based on:

(1) The average daily balance of moneys in the water office cost fund

for the preceding month; and

(2) the net earnings rate for the pooled money investment portfolio

for the preceding month.

(d) All expenditures from the water office cost fund shall be made in

accordance with appropriation acts upon warrants of the director of ac-

counts and reports issued pursuant to vouchers approved by the director

of the Kansas water office for the purposes set forth in this section.

New Sec. 14. (a) As used in this section:

(1) ``Chief engineer'' means the chief engineer of the division of water

resources of the department of agriculture.

(2) ``Secretary'' means the secretary of agriculture.

(b) Any person who commits any of the following may incur a civil

penalty as provided by this section:

(1) Any violation of the Kansas water appropriation act (K.S.A. 82a-

701 et seq., and amendments thereto) or any rule and regulation adopted

thereunder;

(2) any violation of an order issued pursuant to K.S.A. 82a-1038, and

amendments thereto, relating to an intensive groundwater use control

area; or

(3) any violation of a term, condition or limitation imposed by the

chief engineer as authorized by law, including, but not limited to: (A)

Diversion of water from an unauthorized point of diversion; (B) failure

to limit the use of water to the authorized place of use; (C) failure to

submit or comply with the terms of conservation plans as required pur-

suant to K.S.A. 82a-733, and amendments thereto; (D) failure to comply

with the maximum annual quantity or rate of diversion authorized; (E)

failure to properly install, maintain or assure the accuracy of acceptable

water measurement devices; (F) failure to comply with orders related to

minimum desirable stream flow, unlawful diversion, impairment of senior

water rights or waste of water; or (G) failure to limit the use of water to

an authorized type of use.

(c) The amount of the civil penalty provided for by this section shall

be not less than $100 nor more than $1,000 per violation. In the case of

a continuing violation, each day such violation continues may be deemed

a separate violation. Such civil penalty may be assessed in addition to any

other penalty provided by law.

(d) The chief engineer or the chief engineer's duly authorized agent,

upon a finding that a person has committed a violation specified in sub-

section (b), may order the modification or suspension of the person's

water right or use of water, in addition to any other penalty provided by

law.

(e) No civil penalty or suspension or modification of a water right or

use of water shall be imposed pursuant to this section except on the

written order of the chief engineer or duly authorized agent of the chief

engineer. Such order shall state the nature of the violation, the factual

basis for the finding, the penalty to be imposed and the appropriate pro-

cedure for appeal of the order to the chief engineer or the secretary, as

established by K.S.A. 2000 Supp. 82a-1901, and amendments thereto.

Upon review, the order shall be affirmed, reversed or modified and the

reasons therefor shall be specified.

(f) Any person aggrieved by an order of the chief engineer, or the

chief engineer's duly authorized agent, pursuant to this section may re-

quest review by the secretary as provided by K.S.A. 2000 Supp. 82a-1901,

and amendments thereto, and, upon exhaustion of administrative reme-

dies, may appeal to the district court in the manner provided by the act

for judicial review and civil enforcement of agency actions.

(g) The provisions of this section shall be part of and supplemental

to the Kansas water appropriation act.

Sec. 15. K.S.A. 2000 Supp. 65-171d is hereby amended to read as

follows: 65-171d. (a) For the purpose of preventing surface and subsur-

face water pollution and soil pollution detrimental to public health or to

the plant, animal and aquatic life of the state, and to protect beneficial

designated uses of the waters of the state and to require the treatment of

sewage predicated upon technologically based effluent limitations, the

secretary of health and environment shall make such rules and regula-

tions, including registration of potential sources of pollution, as may in

the secretary's judgment be necessary to: (1) Protect the soil and waters

of the state from pollution resulting from underground storage reservoirs

of hydrocarbons and liquid petroleum gas; (2) control the disposal, dis-

charge or escape of sewage as defined in K.S.A. 65-164 and amendments

thereto, by or from municipalities, corporations, companies, institutions,

state agencies, federal agencies or individuals and any plants, works or

facilities owned or operated, or both, by them; and (3) establish water

quality standards for the waters of the state to protect their beneficial

designated uses. In no event shall the secretary's authority be interpreted

to include authority over the beneficial use of water, water quantity al-

locations, protection against water use impairment of a beneficial use, or

any other function or authority under the jurisdiction of the Kansas water

appropriation act, K.S.A. 82a-701, and amendments thereto.

(b) The secretary of health and environment may adopt by reference

any regulation relating to water quality and effluent standards promul-

gated by the federal government pursuant to the provisions of the federal

clean water act and amendments thereto, as in effect on January 1, 1989,

which the secretary is otherwise authorized by law to adopt.

(c) For the purposes of this act, including K.S.A. 65-161 through 65-

171h and K.S.A. 2000 Supp. 65-1,178 through 65-1,198, and amendments

thereto, and rules and regulations adopted pursuant thereto:

(1) ``Pollution'' means: (A) Such contamination or other alteration of

the physical, chemical or biological properties of any waters of the state

as will or is likely to create a nuisance or render such waters harmful,

detrimental or injurious to public health, safety or welfare, or to the plant,

animal or aquatic life of the state or to other designated beneficial uses;

or (B) such discharge as will or is likely to exceed state effluent standards

predicated upon technologically based effluent limitations.

(2) ``Confined feeding facility'' means any lot, pen, pool or pond: (A)

Which is used for the confined feeding of animals or fowl for food, fur

or pleasure purposes; (B) which is not normally used for raising crops;

and (C) in which no vegetation intended for animal food is growing.

(3) ``Animal unit'' means a unit of measurement calculated by adding

the following numbers: The number of beef cattle weighing more than

700 pounds multiplied by 1.0; plus the number of cattle weighing less

than 700 pounds multiplied by 0.5; plus the number of mature dairy cattle

multiplied by 1.4; plus the number of swine weighing more than 55

pounds multiplied by 0.4; plus the number of swine weighing 55 pounds

or less multiplied by 0.1; plus the number of sheep or lambs multiplied

by 0.1; plus the number of horses multiplied by 2.0; plus the number of

turkeys multiplied by 0.018; plus the number of laying hens or broilers,

if the facility has continuous overflow watering, multiplied by 0.01; plus

the number of laying hens or broilers, if the facility has a liquid manure

system, multiplied by 0.033; plus the number of ducks multiplied by 0.2.

However, each head of cattle will be counted as one full animal unit for

the purpose of determining the need for a federal permit. ``Animal unit''

also includes the number of swine weighing 55 pounds or less multiplied

by 0.1 for the purpose of determining applicable requirements for new

construction of a confined feeding facility for which a permit or registra-

tion has not been issued before January 1, 1998, and for which an appli-

cation for a permit or registration and plans have not been filed with the

secretary of health and environment before January 1, 1998, or for the

purpose of determining applicable requirements for expansion of such

facility. However, each head of swine weighing 55 pounds or less shall be

counted as 0.0 animal unit for the purpose of determining the need for

a federal permit.

(4) ``Animal unit capacity'' means the maximum number of animal

units which a confined feeding facility is designed to accommodate at any

one time.

(5) ``Habitable structure'' means any of the following structures which

is occupied or maintained in a condition which may be occupied and

which, in the case of a confined feeding facility for swine, is owned by a

person other than the operator of such facility: A dwelling, church, school,

adult care home, medical care facility, child care facility, library, com-

munity center, public building, office building or licensed food service or

lodging establishment.

(6) ``Wildlife refuge'' means Cheyenne Bottoms wildlife management

area, Cheyenne Bottoms preserve and Flint Hills, Quivera, Marais des

Cygnes and Kirwin national wildlife refuges.

(d) In adopting rules and regulations, the secretary of health and en-

vironment, taking into account the varying conditions that are probable

for each source of sewage and its possible place of disposal, discharge or

escape, may provide for varying the control measures required in each

case to those the secretary finds to be necessary to prevent pollution. If

a freshwater reservoir or farm pond is privately owned and where com-

plete ownership of land bordering the reservoir or pond is under common

private ownership, such freshwater reservoir or farm pond shall be ex-

empt from water quality standards except as it relates to water discharge

or seepage from the reservoir or pond to waters of the state, either surface

or groundwater, or as it relates to the public health of persons using the

reservoir or pond or waters therefrom.

(e) (1) Whenever the secretary of health and environment or the

secretary's duly authorized agents find that the soil or waters of the state

are not being protected from pollution resulting from underground stor-

age reservoirs of hydrocarbons and liquid petroleum gas or that storage

or disposal of salt water not regulated by the state corporation commission

or refuse in any surface pond is causing or is likely to cause pollution of

soil or waters of the state, the secretary or the secretary's duly authorized

agents shall issue an order prohibiting such underground storage reservoir

or surface pond. Any person aggrieved by such order may within 15 days

of service of the order request in writing a hearing on the order.

(2) Upon receipt of a timely request, a hearing shall be conducted in

accordance with the provisions of the Kansas administrative procedure

act.

(3) Any action of the secretary pursuant to this subsection is subject

to review in accordance with the act for judicial review and civil enforce-

ment of agency actions.

(f) The secretary may adopt rules and regulations establishing fees

for the following services:

(1) Plan approval, monitoring and inspecting underground or buried

petroleum products storage tanks, for which the annual fee shall not ex-

ceed $5 for each tank in place;

(2) permitting, monitoring and inspecting salt solution mining oper-

ators, for which the annual fee shall not exceed $1,950 per company; and

(3) permitting, monitoring and inspecting hydrocarbon storage wells

and well systems, for which the annual fee shall not exceed $1,875 per

company.

(g) Prior to any new construction of a confined feeding facility with

an animal unit capacity of 300 to 999, such facility shall register with the

secretary of health and environment. Facilities with a capacity of less than

300 animal units may register with the secretary. Any such registration

shall be accompanied by a $25 fee. Within 30 days of receipt of such

registration, the department of health and environment shall identify any

significant water pollution potential or separation distance violations pur-

suant to subsection (h). If there is identified a significant water pollution

potential, such facility shall be required to obtain a permit from the sec-

retary. If there is no water pollution potential posed by a facility with an

animal unit capacity of less than 300, the secretary may certify that no

permit is required. If there is no water pollution potential nor any viola-

tion of separation distances posed by a facility with an animal unit capacity

of 300 to 999, the secretary shall certify that no permit is required and

that there are no certification conditions pertaining to separation dis-

tances. If a separation distance violation is identified, the secretary may

reduce the separation distance in accordance with subsection (i) and shall

certify any such reduction of separation distances.

(h) (1) Any new construction or new expansion of a confined feeding

facility, other than a confined feeding facility for swine, shall meet or

exceed the following requirements in separation distances from any hab-

itable structure in existence when the application for a permit is submit-

ted:

(A) 1,320 feet for facilities with an animal unit capacity of 300 to 999;

and

(B) 4,000 feet for facilities with an animal unit capacity of 1,000 or

more.

(2) A confined feeding facility for swine shall meet or exceed the

following requirements in separation distances from any habitable struc-

ture or city, county, state or federal park in existence when the application

for a permit is submitted:

(A) 1,320 feet for facilities with an animal unit capacity of 300 to 999;

(B) 4,000 feet for facilities with an animal unit capacity of 1,000 to

3,724;

(C) 4,000 feet for expansion of existing facilities to an animal unit

capacity of 3,725 or more if such expansion is within the perimeter from

which separation distances are determined pursuant to subsection (k) for

the existing facility; and

(D) 5,000 feet for: (i) Construction of new facilities with an animal

unit capacity of 3,725 or more; or (ii) expansion of existing facilities to an

animal unit capacity of 3,725 or more if such expansion extends outside

the perimeter from which separation distances are determined pursuant

to subsection (k) for the existing facility.

(3) Any construction of new confined feeding facilities for swine shall

meet or exceed the following requirements in separation distances from

any wildlife refuge:

(A) 10,000 feet for facilities with an animal unit capacity of 1,000 to

3,724; and

(B) 16,000 feet for facilities with an animal unit capacity of 3,725 or

more.

(i) (1) The separation distance requirements of subsections (h)(1)

and (2) shall not apply if the applicant for a permit obtains a written

agreement from all owners of habitable structures which are within the

separation distance stating such owners are aware of the construction or

expansion and have no objections to such construction or expansion. The

written agreement shall be filed in the register of deeds office of the

county in which the habitable structure is located.

(2) (A) The secretary may reduce the separation distance require-

ments of subsection (h)(1) if: (i) No substantial objection from owners of

habitable structures within the separation distance is received in response

to public notice; or (ii) the board of county commissioners of the county

where the confined feeding facility is located submits a written request

seeking a reduction of separation distances.

(B) The secretary may reduce the separation distance requirements

of subsection (h)(2)(A) or (B) if: (i) No substantial objection from owners

of habitable structures within the separation distance is received in re-

sponse to notice given in accordance with subsection (l); (ii) the board of

county commissioners of the county where the confined feeding facility

is located submits a written request seeking a reduction of separation

distances; or (iii) the secretary determines that technology exists that

meets or exceeds the effect of the required separation distance and the

facility will be using such technology.

(C) The secretary may reduce the separation distance requirements

of subsection (h)(2)(C) or (D) if: (i) No substantial objection from owners

of habitable structures within the separation distance is received in re-

sponse to notice given in accordance with subsection (l); or (ii) the sec-

retary determines that technology exists that meets or exceeds the effect

of the required separation distance and the facility will be using such

technology.

(j) (1) The separation distances required pursuant to subsection

(h)(1) shall not apply to:

(A) Confined feeding facilities which were permitted or certified by

the secretary on July 1, 1994;

(B) confined feeding facilities which existed on July 1, 1994, and reg-

istered with the secretary before July 1, 1996; or

(C) expansion of a confined feeding facility, including any expansion

for which an application was pending on July 1, 1994, if: (i) In the case

of a facility with an animal unit capacity of 1,000 or more prior to July 1,

1994, the expansion is located at a distance not less than the distance

between the facility and the nearest habitable structure prior to the ex-

pansion; or (ii) in the case of a facility with an animal unit capacity of less

than 1,000 prior to July 1, 1994, the expansion is located at a distance not

less than the distance between the facility and the nearest habitable struc-

ture prior to the expansion and the animal unit capacity of the facility

after expansion does not exceed 2,000.

(2) The separation distances required pursuant to subsections

(h)(2)(A) and (B) shall not apply to:

(A) Confined feeding facilities for swine which were permitted or

certified by the secretary on July 1, 1994;

(B) confined feeding facilities for swine which existed on July 1, 1994,

and registered with the secretary before July 1, 1996; or

(C) expansion of a confined feeding facility which existed on July 1,

1994, if: (i) In the case of a facility with an animal unit capacity of 1,000

or more prior to July 1, 1994, the expansion is located at a distance not

less than the distance between the facility and the nearest habitable struc-

ture prior to the expansion; or (ii) in the case of a facility with an animal

unit capacity of less than 1,000 prior to July 1, 1994, the expansion is

located at a distance not less than the distance between the facility and

the nearest habitable structure prior to the expansion and the animal unit

capacity of the facility after expansion does not exceed 2,000.

(3) The separation distances required pursuant to subsections

(h)(2)(C) and (D) and (h)(3) shall not apply to the following, as deter-

mined in accordance with subsections (a), (e) and (f) of K.S.A. 2000 Supp.

65-1,178 and amendments thereto:

(A) Expansion of an existing confined feeding facility for swine if an

application for such expansion has been received by the department be-

fore March 1, 1998; and

(B) construction of a new confined feeding facility for swine if an

application for such facility has been received by the department before

March 1, 1998.

(k) The separation distances required by this section for confined

feeding facilities for swine shall be determined from the exterior perim-

eter of any buildings utilized for housing swine, any lots containing swine,

any swine waste retention lagoons or ponds or other manure or waste-

water storage structures and any additional areas designated by the ap-

plicant for future expansion. Such separation distances shall not apply to

offices, dwellings and feed production facilities of a confined feeding fa-

cility for swine.

(l) The applicant shall give the notice required by subsections

(i)(2)(B) and (C) by certified mail, return receipt requested, to all owners

of habitable structures within the separation distance. The applicant shall

submit to the department evidence, satisfactory to the department, that

such notice has been given.

(m) All plans and specifications submitted to the department for new

construction or new expansion of confined feeding facilities may be, but

are not required to be, prepared by a professional engineer or a consult-

ant, as approved by the department. Before approval by the department,

any consultant preparing such plans and specifications shall submit to the

department evidence, satisfactory to the department, of adequate general

commercial liability insurance coverage.

New Sec. 16. (a) As used in this section:

(1) ``Base average usage'' means: (A) The average amount of water

actually used for a beneficial use under a groundwater water right during

calendar years 1996 through 2000, excluding any amount used in any such

year in excess of the amount authorized by such water right; or (B) if the

holder of a groundwater water right shows to the satisfaction of the chief

engineer that the holder has implemented significant water conservation

measures during calendar years 1996 through 2000, the average amount

of water actually used for a beneficial use under such right during the

five calendar years immediately before the calendar year when such meas-

ures were implemented, excluding any amount used in any such year in

excess of the amount authorized by such water right.

(2) ``Chief engineer'' means the chief engineer of the division of water

resources of the department of agriculture.

(b) Any holder of a groundwater water right which has not been de-

posited or placed in a safe deposit account in a chartered water bank may

establish a flex account where the holder may deposit, in advance, water

from such water right for any five consecutive calendar years, subject to

the following:

(1) The water right must be vested or shall have been issued a cer-

tificate of appropriation;

(2) the withdrawal of water pursuant to the water right shall be prop-

erly and adequately metered;

(3) the water right shall not have been abandoned and shall be in

good standing, based on past water usage and compliance with the terms

of the holder's permit and all applicable provisions of law and orders of

the chief engineer; and

(4) the amount of water that shall be deposited in the account shall

be 90% of the amount of the holder's base average usage times five.

(c) The chief engineer shall implement a program providing for the

issuance of term permits to holders of groundwater water rights who have

established flex accounts in accordance with this section. Such term per-

mits shall authorize the use of water in a flex account at any time during

the five consecutive calendar years for which the application for the term

permit is made, without annual limits on such use. Application for any

such term permit shall be filed not later than October 10, of the year

preceding the first year for which the application is made.

(d) Term permits provided for by this section shall be subject to the

following:

(1) A separate term permit shall be required for each point of diver-

sion.

(2) The quantity of water authorized for diversion shall be limited to

the amount deposited pursuant to subsection (b)(4).

(3) The authorized place of use for the term permit shall not be

greater than that authorized by the existing groundwater right.

(4) The chief engineer may establish, by rules and regulations, criteria

for such term permits when the water right authorizes multiple points of

diversion or multiple water rights authorize a single point of diversion or

overlapping places of use.

(5) Except as explicitly provided for by this section, such term permits

shall be subject to all provisions of the Kansas water appropriation act,

and rules and regulations adopted under such act, and nothing in this

section shall authorize impairment of any vested right or prior appropri-

ation right by the exercise of such term permit.

(e) All costs of administration of this section shall be paid from fees

for term permits provided for by this section. Any appropriation or trans-

fer from any fund other than the water appropriation certification fund

for the purpose of paying such costs shall be repaid to the fund from

which such appropriation or transfer is made. At the time of repayment,

the secretary of agriculture shall certify to the director of accounts and

reports the amount to be repaid and the fund to be repaid. Upon receipt

of such certification, the director of accounts and reports shall promptly

transfer the amount certified to the specified fund.

(f) The chief engineer shall submit a written report on the imple-

mentation of this section to the house standing committee on environ-

ment and the senate standing committee on natural resources on or be-

fore February 1 of each year.

(g) This section shall be part of and supplemental to the Kansas water

appropriation act.

Sec. 17. K.S.A. 82a-708a is hereby amended to read as follows: 82a-

708a. (a) Any person may apply for a permit to appropriate water to a

beneficial use, notwithstanding that the application pertains to the use of

water by another, or upon or in connection with the lands of another.

Any rights to the beneficial use of water perfected under such application

shall attach to the lands on or in connection with which the water is used

and shall remain subject to the control of the owners of the lands as in

other cases provided by law.

(b) Except as otherwise provided in subsections (d) and (e), (e) and

(f), each application for a permit to appropriate water, except applications

for permits for domestic use, shall be accompanied by an application fee

fixed by this section for the appropriate category of acre feet in accord-

ance with the following:

Acre Feet Fee

0 to 100$100
101 to 320$150
More than 320$150 + $10
for each additional 100
acre feet or any part thereof
(c) Except as otherwise provided in subsections (d) and (e), (e) and

(f), each application for a permit to appropriate water for storage, except

applications for permits for domestic use, shall be accompanied by an

application fee fixed by this section for the appropriate category of stor-

age-acre feet in accordance with the following:

Storage-Acre Feet Fee

0 to 250$100
More than 250$100 + $10
for each additional 250
storage-acre feet or any part thereof
(d) Each application for a term permit pursuant to section 16, and

amendments thereto, shall be accompanied by an application fee estab-

lished by rules and regulations of the chief engineer in an amount not to

exceed $400 for the five-year period covered by the permit.

(e) For any application for a permit to appropriate water, except ap-

plications for permits for domestic use, which proposes to appropriate by

both direct flow and storage, the fee charged shall be the fee under sub-

section (b) or subsection (c), whichever is larger, but not both fees.

(e) (f) Each application for a permit to appropriate water for water

power or dewatering purposes shall be accompanied by an application

fee of $100 plus $200 for each 100 cubic feet per second, or part thereof,

of the diversion rate requested in the application for the proposed project.

(f) (g) 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. 18. K.S.A. 82a-1030 is hereby amended to read as follows: 82a-

1030. (a) In order to finance the operations of the district, the board may

assess an annual water user charge against every person who withdraws

groundwater from within the boundaries of the district. The board shall

base such charge upon the amount of groundwater allocated for such

person's use pursuant to his or her such person's water right. Such charge

shall not exceed sixty cents (60¢ ) $.60 for each acre-foot (325,851 gallons)

of groundwater withdrawn within the district or allocated by the water

right, except that the annual user charge for the fiscal year of the district

beginning on or after July 1, 2001, and before July 1, 2002, may be in an

amount not exceeding $.65. Whenever a person shows by the submission

to the board of a verified claim and any supportive data which may be

required by the board that his or her such person's actual annual ground-

water withdrawal is in a lesser amount than that allocated by the water

right of such person, the board shall assess such annual charge against

such person on the amount of water shown to be withdrawn by the ver-

ified claim. Any such claim shall be submitted by April 1 of the year in

which such annual charge is to be assessed. The board may also make an

annual assessment against each landowner of not to exceed five cents (5¢ )

$.05 for each acre of land owned within the boundaries of the district.

Special assessments may also be levied, as provided hereafter, against land

specially benefited by a capital improvement without regard to the limits

prescribed above.

(b) Before any assessment is made, or user charge imposed, the board

shall submit the proposed budget for the ensuing year to the eligible

voters of the district at a hearing called for that purpose by one (1) pub-

lication in a newspaper or newspapers of general circulation within the

district at least twenty-eight (28) 28 days prior to the meeting. Following

the hearing, the board shall, by resolution, adopt either the proposed

budget or a modified budget and determine the amount of land assess-

ment or user charge, or both, needed to support such budget.

(c) Both the user charges assessed for groundwater withdrawn and

the assessments against lands within the district shall be certified to the

proper county clerks and collected the same as other taxes in accordance

with K.S.A. 79-1801, and acts amendatory thereof or supplemental

thereto, and the amount thereof shall attach to the real property involved

as a lien in accordance with K.S.A. 79-1804, and acts amendatory thereof

or supplemental thereto. All moneys so collected shall be remitted by the

county treasurer to the treasurer of the groundwater management district

who shall deposit them to the credit of the general fund of the district.

The accounts of each groundwater management district shall be audited

annually by a public accountant or certified public accountant.

(d) Subsequent to the certification of approval of the organization of

a district by the secretary of state and the election of a board of directors

for such district, such board shall be authorized to issue no-fund warrants

in amounts sufficient to meet the operating expenses of the district until

money therefor becomes available pursuant to user charges or assess-

ments under subsection (a). In no case shall the amount of any such

issuance be in excess of twenty percent (20%) 20% of the total amount

of money receivable from assessments which could be levied in any one

year as provided in subsection (a). No such warrants shall be issued until

a resolution authorizing the same shall have been adopted by the board

and published once in a newspaper having a general circulation in each

county within the boundaries of the district. Whereupon such warrants

may be issued unless a petition in opposition to the same, signed by not

less than ten percent (10%) 10% of the eligible voters of such district and

in no case by less than twenty (20) 20 of the eligible voters of such district,

is filed with the county clerk of each of the counties in such district within

ten (10) 10 days following such publication. In the event such a petition

is filed, it shall be the duty of the board of such district to submit the

question to the eligible voters at an election called for such purpose. Such

election shall be noticed and conducted as provided by K.S.A. 82a-1031,

and amendments thereto.

Whenever no-fund warrants are issued under the authority of this sub-

section, the board of directors of such district shall make an assessment

each year for three (3) years in approximately equal installments for the

purpose of paying such warrants and the interest thereon. All such as-

sessments shall be in addition to all other assessments authorized or lim-

ited by law. Such warrants shall be issued, registered, redeemed and bear

interest in the manner and in the form prescribed by K.S.A. 79-2940, and

amendments thereto, except they shall not bear the notation required by

said statute and may be issued without the approval of the state board of

tax appeals. Any surplus existing after the redemption of such warrants

shall be handled in the manner prescribed by K.S.A. 79-2940, and amend-

ments thereto.

Sec. 19. K.S.A. 82a-708a and 82a-1030 and K.S.A. 2000 Supp. 65-

171d are hereby repealed.

Sec. 20. This act shall take effect and be in force from and after its

publication in the statute book.

Approved May 9, 2000.


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Date Composed: 09/25/2001 Date Modified: 09/25/2001