Kan. Admin. Regs. § 5-4-1

Current through Register Vol. 43, No. 45, November 7, 2024

Section 5-4-1 - Distribution of water between users when a prior right is being impaired

In responding to a complaint that a prior water right is being impaired, the following procedure shall be followed:

(a) Complaint. The complaint shall be submitted in writing to the chief engineer or that person's authorized representative. The chief engineer shall take no action until the written complaint is submitted and, for non-domestic groundwater rights, the information specified in paragraph (b)(2) is provided.

(b) Investigation. The chief engineer shall investigate the physical conditions involved, according to the water rights involved in the complaint.

(1) If the water right is domestic, the chief engineer may require the complainant to provide a written report similar to that described in paragraph (b)(2).

(2) If the water right claimed to be impaired is not a domestic right and its source of water is groundwater, the complainant shall provide to the chief engineer a written report completed within 180 days preceding the date of the complaint. Within 30 days of the complainant's request, the chief engineer shall provide the complainant with data from the division of water resources that is relevant to preparation of the required report. The complainant's report shall meet the following requirements:

(A) Be prepared by a licensed well driller, a professional engineer, or a licensed geologist;

(B) describe the construction and the components ofthe well;

(C) provide data to show the extent to which the well has fully penetrated the productive portions of the aquifer with water of acceptable quality for the authorized use; and

(D) provide testing and inspection data to show the extent to which the pump and power unit are in good working condition to make full use of the available aquifer.

(3) In assessing the complainant's written report, the chief engineer may use all relevant data, including historical data from water well completion records, Kansas geological survey bulletins, and other data in the water right files.

(4) If the area of complaint is located within the boundaries of a groundwater management district (GMD), the chief engineer shall notify the GMD of the complaint before initiating the investigation and shall give the board of directors of the GMD the opportunity to assist with the investigation.

(5) If the source of water is groundwater, the chief engineer may require hydrologic testing to determine hy-drological characteristics as part of the investigation. The chief engineer shall provide notice to water right owners in a geographic area sufficient to conduct the hydrologic testing and to determine who could be affected by the actions made necessary by the results of the investigation. These water right owners shall be known as the potentially affected parties. As part of the investigation, the chief engineer may require access to points of diversion or observation wells and may require the installation of observation wells.

(6) Data acquired during the investigation shall be provided to the complainant and any other persons notified for review and comment at their request as the investigation proceeds.

(c) Report. The chief engineer shall issue a report stating the relevant findings of the investigation.

(1) If the complainant's water right is a domestic water right or has surface water as its source and the complainant claims impairment by the diversion of water pursuant to surface rights, the chief engineer shall provide a copy of the report to the complainant and to the potentially affected parties. This report shall constitute the final report of the investigation.

(2) If the complainant's water right is not a domestic right and has groundwater as its source or if the complainant's water right has surface water as its source and claims impairment by the diversion of water pursuant to groundwater rights, a copy of the report shall be provided by the division of water resources to the complainant and to the potentially affected parties. The report shall be posted by the division of water resources on the department of agriculture's web site. This report shall constitute the initial report of the investigation.

(A) If the initial report shows impairment, the potentially affected parties shall have the opportunity to submit written comments on the initial report within 30 days of its posting on the department's web site or a longer period if granted by the chief engineer. The chief engineer shall consider the written comments of the potentially affected parties.

(B) If the area of complaint is located within the boundaries of a GMD, the chief engineer shall provide a copy of the initial report to the GMD and shall consider any written comments submitted by the GMD board within 30 days of the posting of the initial report on the department's web site or a longer period if granted by the chief engineer.

(C) Nothing in this regulation shall prevent the chief engineer from regulating water uses that the chief engineer has determined are directly impairing senior water rights during the comment period or, if applicable, before obtaining written comments by the GMD board during the comment period.

(3) After reviewing comments on the initial report from potentially affected parties and, if applicable, from the GMD board, the chief engineer shall issue a final report, which shall be provided to the complainant, the potentially affected parties, and the GMD board if applicable and shall be posted on the department of agriculture's web site.

(4) The chief engineer may require conservation plans authorized by K.S.A. 82a-733, and amendments thereto, based on the initial and final reports.

(5) If the chief engineer's final report determines impairment and the source of water is a regional aquifer, the final report shall determine whether the impairment is substantially caused by a regional overall lowering of the water table. If the impairment is determined to be substantially caused by a regional overall lowering of the water table, no further action shall be taken under this regulation, and the procedure specified in K.A.R. 5-4-1a shall be followed.

(d) Request to secure water. If the complainant desires the chief engineer to regulate water rights that the final report has found to be impairing the complainant's water right, the complainant shall submit a written request to secure water to satisfy the complainant's prior right. The request to secure water shall be submitted on a prescribed form furnished by the division of water resources. The complainant shall specify the minimum reasonable rate needed to satisfy the water right and shall also provide information substantiating that need. The chief engineer shall determine how to regulate the impairing rights. Each request to secure water to satisfy irrigation-use water rights shall expire at the end of the calendar year in which the request was submitted.

(e) Notice of order.

(1) The chief engineer shall give a written notice and directive to those water right holders whose use of water must be curtailed to secure water to satisfy the complainant's prior rights.

(2) If the area of complaint is located within the boundaries of a GMD and if the final report determines that the impairment is substantially due to direct interference, the chief engineer shall allow the GMD board to recommend how to regulate the impairing water rights to satisfy the impaired right.

(3) The chief engineer may consider regulating the impairing rights the next year and rotating water use among rights.

(4) All water delivered to the user's point of diversion for that individual's use at the specified rate or less shall be applied to the authorized beneficial use and shall count against the quantity of water specified unless the user notifies the chief engineer or authorized representative that diversion and use will be discontinued for a period of time for good reason.

(5) When the quantity of water needed has been delivered to the user's point of diversion or when the user discontinues that individual's use of water, those persons who have been directed to regulate their use shall be notified that they may resume the diversion and use of water.

(6) If the available water supply in the source increases, the chief engineer may allow some or all of the regulated users to resume use, depending on the supply.

Kan. Admin. Regs. § 5-4-1

Authorized by and implementing K.S.A. 82a-706a; modified, L. 1978, ch. 460, May 1, 1978; amended Oct. 29, 2010.