Session Law

Identifying Information:L. 2002 ch. 138
Other Identifying Information:2002 Senate Bill 436
Tax Type:Other
Brief Description: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.
Keywords:


Body:

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:

TypePre-ConstructionConstruction

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-ConstructionConstruction 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 CategoryPre-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 DamInspection 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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Date Composed: 10/10/2002 Date Modified: 10/10/2002