Kan. Admin. Regs. § 5-7-4 - Water rights conservation program; tier 1

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

(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

Kan. Admin. Regs. § 5-7-4
Authorized by K.S.A. 82a-706a and K.S.A. 2013 Supp. 82a-741; implementing K.S.A. 82a-706, K.S.A. 82a-713, K.S.A. 2013 Supp. 82a-714, K.S.A. 2013 Supp. 82a-718, and K.S.A. 2013 Supp. 82a-741; effective July 1, 1994; amended Sept. 22, 2000; amended Dec. 28, 2009; amended April 18, 2014

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