Kan. Admin. Regs. § 5-7-1 - Due and sufficient cause for nonuse

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

(a) Each of the following circumstances shall be considered "due and sufficient cause," as used in K.S.A. 82a-718 and amendments thereto:
(1) Adequate moisture from natural precipitation exists for the production of grain, forage, or specialty crops, as determined by the moisture requirements of the specific crop.
(2) A right has been established or is in the process of being perfected for use of water from one or more preferred sources in which a supply is available currently but is likely to be depleted during periods of drought.
(3) Water is not available from the source of water supply for the authorized use at times needed.
(4) Water use is temporarily discontinued by the owner for a definite period of time to permit soil, moisture, and water conservation, as documented by any of the following:
(A) Furnishing to the chief engineer a copy of a contract showing that land that has been lawfully irrigated with a water right that has not been abandoned is enrolled in a multiyear federal or state conservation program that has been approved by the chief engineer;
(B) enrolling the water right in the water right conservation program in accordance with K.A.R. 5-7-4, K.A.R. 5-7-4b, and K.S.A. 2013 Supp. 82a-741 and amendments thereto; or
(C) any other method acceptable to the chief engineer that can be adequately documented by the owner before the nonuse takes place.
(5) Management and conservation practices are being applied that require the use of less water than authorized. If a conservation plan has been required by the chief engineer, the management and conservation practices used shall be consistent with the conservation plan approved by the chief engineer to qualify under this subsection.
(6) The chief engineer has previously approved the placement of the point of diversion in a standby status in accordance with K.A.R. 5-1-2.
(7) Physical problems exist with the point of diversion, distribution system, place of use, or the operator. This circumstance shall constitute due and sufficient cause only for a period of time reasonable to correct the problem.
(8) Conditions exist beyond the control of the owner that prevent access to the authorized place of use or point of diversion, as long as the owner is taking reasonable affirmative action to gain access.
(9) An alternate source of water supply was not needed and was not used because the primary source of supply was adequate to supply the needs of the water right owner.
(10) The chief engineer determines that a manifest injustice would result if the water right were deemed abandoned under the circumstances of the case.
(11) The water right is located in an area of the state that is closed to new appropriations of water by regulation or order of the chief engineer but is not closed by a safe-yield analysis.
(12) The water right has been deposited in a water bank authorized by K.S.A. 2013 Supp. 82a-761 through K.S.A. 2013 Supp. 82a-773, and amendments thereto.
(13) Water use, as authorized by the water right, is suspended because the water right is enrolled in a multiyear flex account, pursuant to K.S.A. 2013 Supp. 82a-736 and amendments thereto.
(b) In addition to circumstances considered due and sufficient cause pursuant to subsection (a), both of the following requirements shall also be met to constitute due and sufficient cause for nonuse of water:
(1) The reason purporting to constitute due and sufficient cause shall have in fact prevented, or made unnecessary, the authorized beneficial use of water.
(2) Except for the temporarily discontinued use of water as provided by paragraph (a)(4) and for physical problems with the point of diversion or distribution system as provided by paragraph (a)(7), the owner shall maintain the diversion works in a functional condition.
(c) Each year of nonuse for which the chief engineer finds that due and sufficient cause exists shall be considered to interrupt the successive years of nonuse for which due and sufficient cause does not exist.
(d) When a verified report of the chief engineer, or the chief engineer's authorized representative, is made a matter of record at a hearing held pursuant to K.S.A. 82a-718, and amendments thereto, that establishes nonuse of a water right for five or more successive years, the water right owner shall have the burden of showing that there have not been five or more successive years of nonuse without due and sufficient cause.

Notes

Kan. Admin. Regs. § 5-7-1
Authorized by K.S.A. 82a-706a; implementing K.S.A. 82a-706a and K.S.A. 2013 Supp. 82a-718; modified, L. 1978, ch. 460, May 1, 1978; amended May 1, 1986; amended May 31, 1994; amended Oct. 24, 2003; amended May 21, 2010; amended April 18, 2014.

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