Kan. Admin. Regs. § 5-17-1 - Definitions for water banking

Current through Register Vol. 40, No. 39, September 30, 2021

As used in these water banking regulations, in the Kansas water banking act, K.S.A. 82a-761 et seq. and amendments thereto, and by the chief engineer in the administration of this act, unless the context clearly requires otherwise, the following words and phrases shall have the meanings ascribed to them in this regulation:

(a) "Bankable water right" means a water right, or portion of a water right, that meets the requirements of the following:
(1) K.S.A. 82a-764, and amendments thereto; and
(2) the water bank charter.

In calculating the portion of a water right that is bankable, credit shall be given for any water conservation practices implemented according to this regulation. The bankable portion of linked water rights shall be determined on a case-by-case basis. For a surface water right that has water available from a water assurance district, the quantity of water available from the water assurance district may be considered when determining how much of the water right is bankable.

(b) "Good standing," only for the purposes of the Kansas water banking act and regulations, means a water right, or portion of a water right, that meets all of the following criteria:
(1) Except as set forth in paragraph (b)(2), the water right, or portion of a water right, has been lawfully put to beneficial use within the past five years.
(2) For a water right that has been enrolled in the water right conservation program (WRCP) or a water right whose authorized place of use has been enrolled in the conservation reserve program (CRP), the water right has been put to lawful beneficial use within the five-calendar-year period before enrollment in the program. A water right that is currently enrolled in the WRCP shall not be deposited in a water bank. If the authorized place of use is currently enrolled in the CRP, the water right shall not be deposited in a water bank, unless the authorized place of use has been changed to a place of use that is not enrolled in the CRP and water has actually been applied to beneficial use on the newly authorized place of use for at least one calendar year.
(3) All of the following conditions regarding the water right are met:
(A) In the five calendar years before the water right is deposited or placed in a safe deposit account, there has not been a conviction associated with that water right pursuant to K.S.A. 82a-728, and amendments thereto.
(B) No civil penalty has been assessed pursuant to K.S.A. 82a-737, and amendments thereto, against anyone for violations relating to the water right.
(C) The water right has not been suspended pursuant to K.S.A. 82a-737, and amendments thereto.
(D) No order of the chief engineer relating to the water right has been disobeyed.
(E) The applicant who is applying to deposit the water right into, or lease water from, a water bank or to withdraw water from a safe deposit account has a history of compliance with contracts with the water bank and term permits used to withdraw water from a water bank or from a safe deposit account.
(c) "Long-term rolling average," only for the purposes of the Kansas water banking act, means a five-year running average of the net consumptive use of all the participating rights. This average shall be calculated by adding together the average net consumptive use for each participating right in a hydrologic unit.

The average shall first be computed after the water bank has been in operation for three years. For each year after the third year, another year's data shall be added until five years of data are available. After the water bank has been in operation for five years or more, the last five years of data shall be used to calculate the average. The resulting number shall then be compared against the average annual net consumptive use of participating rights in that hydrologic unit for the representative past period.

(d) "Net consumptive use" means the gross diversion of water for beneficial use, minus the following:
(1) Waste of water, as defined in K.A.R. 5-1-1; and
(2) return flows to the source of water supply through surface water that is not waste and by deep percolation.

For irrigation use, only as used in the water banking act and regulations, net consumptive use shall be calculated as 85 percent of the actual legal gross diversions in any one calendar year or calculated using some other methodology approved by the chief engineer as complying with standard engineering practices. Net consumptive use for all other types of water use shall be calculated in accordance with a methodology approved by the chief engineer as complying with standard engineering practices.

The average annual net consumptive use for the representative past period shall be calculated by first calculating the average annual net consumptive use for each participating right for the representative past period and then adding those averages together. If a participating right did not legally divert water during any year in the representative past period or was not authorized to divert water, that year shall be counted as zero in computing the average annual consumptive use for that water right for the representative past period.

(e) "Participating rights" means all of the water rights in a hydrologic unit that are under contract to be deposited in a water bank or safe deposit account.
(f) "Representative past period" means a period of at least 10 consecutive years occurring entirely before the date on which the water bank is chartered and having a reasonable balance of years with above-normal and below-normal precipitation. For a water right not permitted during the entire representative past period, for the sole purpose of determining the portion of that water right that is bankable pursuant to K.S.A. 82a-765(b)(9) and amendments thereto, the water bank may select a different representative past period, but the bankable portion of each water right shall be the lesser of either of the following:
(1) The annual quantity of water perfected; or
(2) the average percentage of water rights determined to be bankable, for all water rights in that hydrologic unit that were permitted for the representative past period occurring entirely before the date on which the bank was chartered.
(g) "Severely depleted groundwater aquifer" means an aquifer that meets any of the following criteria:
(1) The chief engineer has declared the aquifer to be an aquifer in need of recovery pursuant to K.S.A. 2-1919, and amendments thereto.
(2) The average static water level decline in the hydrologic unit, based on a representative sample of wells distributed throughout the hydrologic unit, in the 20 calendar years immediately preceding the calendar year in which the water bank was chartered is substantially greater than the average annual variability in the static water level in the hydrologic unit.
(3) The average yield of the groundwater aquifer is not sufficient to meet the 50 percent chance net irrigation requirements (N.I.R.) for crops typically grown in the hydrologic unit using methods of irrigation typically used in that hydrologic unit.
(h) "Severely depleted stream course" means a stream reach that has been declared by the chief engineer to be a stream reach in need of stream recovery pursuant to K.S.A. 2-1919, and amendments thereto.
(i) "Water conservation practices" means actual physical changes in a water distribution system or management practices that were made to improve water use efficiency during the representative past period, including the following:
(1) Conversion from flood irrigation to center pivot irrigation with a nozzle package designed to improve water use efficiency;
(2) irrigation scheduling;
(3) conversion to subsurface drip irrigation; and
(4) removal of an end gun, resulting in a reduction in the number of irrigated acres.

The applicant shall have the burden of documenting the implementation of water conservation practices that could have altered the results of the calculation of the portion of the water right that is bankable, to the detriment of the applicant.

Notes

Kan. Admin. Regs. § 5-17-1
Authorized by and implementing K.S.A. 2003 Supp. 82a-769; effective Aug. 13, 2004.

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