Kan. Admin. Regs. § 5-7-4 - Water rights conservation program; tier 1
(a) Applications for enrollment in the water
rights conservation program (WRCP) received on or before December 31, 2009,
shall be considered for enrollment in the program as tier 1 applications.
Enrollment in tier 1 of the WRCP approved by the chief engineer and continued
compliance with the WRCP shall constitute due and sufficient cause for nonuse
pursuant to
K.S.A.
82a-718, and amendments thereto, and K.A.R.
5-7-1.
(b) In order to qualify for
enrollment in the WRCP as a tier 1 applicant, all of the following requirements
and conditions shall be met:
(1) The point of
diversion shall be located in either of the following locations:
(A) An area that is closed to new
appropriations of water, except for temporary permits, term permits, and
domestic use; or
(B) some other
area designated by the chief engineer as an area where it would be in the
public interest to allow water rights to be placed in the WRCP. In areas within
the boundaries of a groundwater management district , the recommendations of the
board of the district shall be taken into consideration by the chief
engineer.
(2) Each of
the owners of the water right shall agree to totally suspend all water use
authorized by that water right for the duration of the contract.
(3) The owner or owners of the water right
shall sign a contract with the chief engineer , or the chief engineer 's
authorized representative , before placing the water right into the WRCP. The
contract shall be binding on all successors in interest to the water right
owner.
(4) Only an entire water
right may be placed into the WRCP. If a portion of a water right has been
abandoned, the portion that is still in good standing may be enrolled in the
WRCP. If a water right is administratively divided by the chief engineer , each
portion of that divided water right shall be considered to be an entire water
right for the purpose of this regulation.
(A)
If at least five successive years of nonuse have occurred before application
for enrollment in the WRCP, a determination of whether or not that water right
is subject to abandonment before entry into the program, including an analysis
of any reasons given that might constitute due and sufficient cause for nonuse,
shall be made by the chief engineer.
(B) If, after review of the information, it
appears that the right has been abandoned, the statutory procedures, including
the right to a hearing, shall be followed to determine whether or not the right
has been abandoned.
(5)
Only the portion of a water right in good standing at the time of application
for enrollment may be entered into the WRCP.
(c) Other requirements of enrollment in the
WRCP program shall include the following:
(1)
Water rights shall be placed into the WRCP for a definite period of calendar
years of no fewer than five and no more than 10. Each WRCP contract shall
terminate upon expiration of the time period specified in the
contract.
(2) The water right owner
or operator shall not be required to maintain the diversion works or delivery
system during the period of the WRCP contract. If the pump is removed from a
well , the well shall be properly capped or sealed during the contract. These
requirements shall be in addition to those made by the Kansas department of
health and environment pursuant to the groundwater exploration and protection
act, K.S.A. 82a-1201 et seq. and
amendments thereto.
(3) A
certificate determining the extent to which a water right has been perfected
shall be issued by the chief engineer before entering the water right into the
WRCP if all of the following conditions are met:
(A) An applicant has a permit to appropriate
water for beneficial use and has perfected all, or any portion, of the water
right authorized by the permit .
(B)
The time in which to perfect the water right has expired, including any
authorized extensions of time.
(C)
A field inspection has been completed.
(4) If the time to perfect the water right,
or any authorized extension of that right, has not expired, enrollment in the
WRCP shall be considered as suspending the time to perfect . Upon expiration of
the WRCP contract pertaining to this water right, the time to perfect shall
again commence, and the applicant shall be required to perfect the water right
within the remainder of the time allowed to perfect , or any authorized
extension of that time.
(5) Each
year after authorized enrollment in the WRCP, the water use correspondent shall
indicate on the water use report that no water was used because the water right
was enrolled in the WRCP.
(6) If
the owner breaches, or causes or allows a breach of, the WRCP contract with the
chief engineer , each year of nonuse between the effective date of the contract
and the date of the breach shall be counted as years of nonuse without due and
sufficient cause for the purpose of determining whether or not the water right
has been abandoned pursuant to
K.S.A.
82a-718, and amendments thereto. Before this
penalty is imposed, the owner shall be given an opportunity to show either of
the following:
(A) A breach of contract did
not occur.
(B) A breach occurred,
but either was minor or has been cured, and should not constitute grounds for
imposing the penalty.
Notes
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No prior version found.