Kan. Admin. Regs. § 98-5-4 - Contract negotiation procedures

(a) Upon approval of the authority to begin negotiations, the applicant shall be notified by the director and asked to submit the following items before the commencement of negotiations, unless the requirement is waived:

(1) The anticipated location, legal description, engineering plans, and specifications of all works, ditches, conduits, and watercourses proposed to be constructed or used for the transportation of waters;

(2) the engineering report or other evidence to support the need for the annual quantity of water requested throughout the term of the contract;

(3) a list of alternative sources of water available to the applicant;

(4) specification of whether the applicant has adopted and implemented a water conservation plan;

(5) an engineering report and specifications for metering water pumped or used under the contract;

(6) proof of any easement that is granted by the federal government for rights-of-way across, in, and upon federal government land that is required for intake, transmission of water, and necessary appurtenances;

(7) engineering plans and specifications for any pump, siphon, conduit, canal, or any other device planned to be used to withdraw water from the reservoir; and

(8) any other relevant information that the director may deem necessary, specify, or require for that specific contract request or set of negotiations.

(b) After negotiations for a water purchase contract have been authorized by the authority and if the proposed sale is not for surplus waters, all other persons with a pending application shall be notified by the director or a designee that a water purchase contract or a request to negotiate a water purchase contract relating to the same reservoir has been authorized by the authority. Notice shall be given, by first-class mail with postage prepaid, to the last address provided by each applicant. The notice shall include the name of the applicant with whom negotiations are underway and the application date, number, and annual quantity requested. Each person so notified shall, within 20 days following notification by the director, file in writing a request to begin negotiations for a written water purchase contract, water assurance contract, or water supply access contract or a request to negotiate a water purchase contract, water assurance contract, or water supply access contract on file with the director relating to the reservoir from which water is proposed to be sold.

(c) Within 30 days after the authority authorizes negotiations, a draft water purchase contract shall be sent by the director or a designee to the applicant with whom the negotiations are authorized.

(d) When contract negotiations have been completed and a contract has been drafted, a proposed final contract shall be sent by the director to the applicant.

(e) After receipt of the proposed final contract, the applicant shall perform one of the following, within 45 days:

(1) Indicate acceptance of the contract by signing and returning it to the director or by other communication to the director;

(2) return the contract to the director with written comments;

(3) request a meeting with the director to discuss the contract; or

(4) request an extension of time for consideration of the contract.

(f) If the applicant and the director cannot agree on terms or language in the contract, the negotiations may be terminated by the director.

(g) After the applicant and the director agree to a contract, the contract shall be submitted to the authority for consideration at the next regular meeting of the authority or at a special meeting, if deemed necessary by the chairperson and the director.

(h) Before approving any contract, the authority shall find that all of the following conditions are met:

(1) The sale of water by written contract is in the interest of the people of the state of Kansas.

(2) The state has filed or will file, before initiation of water use under the contract, a water reservation right for storage of water in the reservoir designated in the contract.

(3) The state, if necessary, has signed an agreement with an agency or department of the United States for water supply storage in the named reservoir.

(4) The person has filed an application to negotiate the purchase of water from the named reservoir at an average daily rate equal to or greater than the rate specified in the contract.

(5) The quantity of water from the reservoir being negotiated does not exceed the yield capability from the conservation storage water supply capacity available to the state for use under the water marketing program through a drought having a two percent chance of occurrence in any one year.

(6) The annual withdrawal and use of the quantity of water contracted by the applicant will advance the purposes specified in K.S.A. 82a-901 et seq., and amendments thereto.

(i) If the authority finds that the proposed sale of water is not in the interest of the people of the state of Kansas or that the proposed sale will not advance the purposes in K.S.A. 82a-901 et seq. and amendments thereto, the authority shall reject the contract and perform one of the following:

(1) Terminate the contract negotiations. The application shall be removed from the list of current applications and shall be void. The applicant shall be required to reapply for any future water supply contract; or

(2) return the contract to the applicant and director with recommendations for contract changes or additional contract negotiation.

(j) If the authority approves the contract, copies shall be provided to the house of representatives and the senate and to the secretary of state, pursuant to K.S.A. 82a-1307 and amendments thereto.

(k) The application shall be terminated when a contract is signed by the applicant, the director, and the chair, or their designees, and if the contract is not disapproved by the legislature. If the contracted quantity of water is less than the quantity stated in the application, the applicant shall not retain the application number for the remaining quantity. A new application shall be filed for additional water.

(l) If the legislature has not disapproved the contract when the period for legislative review has expired, a copy of the water purchase contract shall be filed by the director with the chief engineer.

(m) Any regulatory requirements may be waived by the director in order to sell surplus waters.

Notes

Kan. Admin. Regs. § 98-5-4

Authorized by K.S.A. 82a-1319; implementing K.S.A. 82a-1305, K.S.A. 82a-1307, K.S.A. 82a-1311a, K.S.A. 82a-1312, and K.S.A. 82a-1316; effective May 1, 1979; amended May 1, 1980; amended May 1, 1981; amended May 1, 1984; amended Aug. 30, 2013.