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82a-301. Permit or consent of chief engineer required to construct, modify or add to dams or other water obstructions; exceptions; definitions. (a) (1) Except as provided in subsections (c) and (d), without the prior written consent or permit of the chief engineer of the division of water resources of the Kansas department of agriculture, it shall be unlawful for any person, partnership, association, corporation or agency or political subdivision of the state government to:

(A) Construct, modify or add to any dam;

(B) construct, modify or add to any water obstruction in a designated stream; or

(C) change or diminish the course, current, or cross section of any designated stream within this state.

(2) Any application for any permit or consent shall be made in writing in such form as specified by the chief engineer.

(3) Revetments for the purpose of stabilizing a caving bank which are properly placed shall not be construed as obstructions for the purposes of this section.

(b) As used in K.S.A. 82a-301 et seq., and amendments thereto:

(1) "Dam" means any artificial barrier including appurtenant works with the ability to impound water, waste water or other liquids that has a height of 25 feet or more; or has a height of six feet or greater and a storage volume at the top of the emergency spillway elevation of 50 or more acre feet. The height of a dam or barrier shall be measured from the lowest elevation of the streambed, downstream toe or outside limit of the dam to the elevation of the top of the dam.

(2) "Designated stream" means a natural or man-made channel that conveys drainage or runoff from a watershed having an area of:

(A) One or more square miles in zone one, which includes all geographic points located in or east of Washington, Clay, Dickinson, Marion, Harvey, Sedgwick or Sumner counties;

(B) two or more square miles in zone two, which includes all geographic points located west of zone one and in or east of Smith, Osborne, Russell, Barton, Stafford, Pratt or Barber counties; or

(C) three or more square miles in zone three, which includes all geographic points located west of zone two.

(c) (1) The prior written consent or permit of the chief engineer shall not apply to water obstructions that meet the following requirements:

(A) The change in the cross section of a designated stream is obstructed less than 5% and the water obstruction or change is contained within a land area measuring 25 feet or less along the stream length; or

(B) (i) the water obstruction is not a dam as defined in subsection (b);

(ii) the water obstruction is not located within an incorporated area;

(iii) every part of the water obstruction, and any water impounded by such obstruction, is located more than 300 feet from any property boundary; and

(iv) the watershed area above the water obstruction is five square miles or less.

(2) If the water obstruction does not meet the requirements of subsection (c)(1)(B)(iii), but meets all other requirements of subsection (c)(1)(B), such water obstruction may be exempted from the permitting requirements of subsection (a) if the chief engineer determines such water obstruction has minimal impact upon safety and property based upon a review of the information, to be provided by the owner, including:

(A) An aerial photo or topographic map depicting the location of the proposed project, the location of the stream, the layout of the water obstruction, the property lines and names and addresses of adjoining property owners; and

(B) the principal dimensions of the project including, but not limited to, the height above streambed.

(3) Notwithstanding any other provision of this section, the chief engineer may require a permit for any water obstruction described in this subsection if the chief engineer determines such permit is necessary for the protection of life or property.

(d) The prior written consent or permit of the chief engineer shall not be required for construction or modification of a hazard class A dam that:

(1) Has a height of less than 30 feet and a storage volume at the top of the emergency spillway elevation of less than 125 acre feet, and the dam location and dimensions have been registered with the division of water resources in a written form prescribed by the chief engineer; or

(2) is a wastewater storage structure for a confined feeding facility that has been approved by the secretary of health and environment pursuant to K.S.A. 65-171d, and amendments thereto.

History: L. 1929, ch. 203, § 1; L. 1978, ch. 431, § 6; L. 2002, ch. 138, § 2; L. 2011, ch. 67, § 1; L. 2013, ch. 111, § 4; July 1.

Cross References to Related Sections:

Irrigation, see also 42-339 et seq.

Law Review and Bar Journal References:

Annotation No. 6 discussed in 1956-57 survey of water law, Earl B. Shurtz, 6 K.L.R. 264, 267 (1957).

"Environmental Law Creeps into Kansas: A Commentary on the Concerned Citizens United suit," George Cameron Coggins and William H. Hensley, 23 K.L.R. 421, 430 (1975).

"Kansas Water Rights: More Recent Developments," Arno Windscheffel, 47 J.B.A.K. 217, 218 (1978).

"Riparian Property Rights: Kansas Law of Riparian Ownership," Blaise R. Plummer, 21 W.L.J. 96, 111 (1981).

"Too Much of a Good Thing: Kansas Law on Unwanted Water," Robert W. Coykendall, 66 J.K.B.A. No. 7, 24 (1997).

"Flooding of Private Property by the Construction of a Public Improvement: Isn't It Time for Kansas to Call It What It Really Is -- A Compensable Taking?" Nicole M. Zomberg, 38 W.L.J. 209 (1998).

Attorney General's Opinions:

Title to bed and banks of navigable river; Arkansas River. 2000-51.

Upstream landowner has duty to protect a lower downstream landowner from any damage resulting from upstream landowner's gathering or diversion of water. 2002-40.

CASE ANNOTATIONS

1. Act discussed; supervisory power over drainage districts conferred on division of water resources. State, ex rel., v. Dolese Bros. Co., 151 Kan. 801, 803, 810, 811, 102 P.2d 95.

2. City flood-control project under 12-635 et seq., requires engineer's approval. Lyman Flood Prevention Ass'n v. City of Topeka, 152 Kan. 484, 493, 106 P.2d 117.

3. Cited; 82a-305 authorizes preventive not mandatory injunction. State, ex rel., v. Ross, 159 Kan. 199, 200, 202, 203, 152 P.2d 675.

4. Condemnation by state highway commission; applicability of act mentioned but not determined. Kansas State Highway Comm. v. Moore, 166 Kan. 408, 409, 410, 201 P.2d 652.

5. Constitutionality of section mentioned but not determined. State, ex rel., v. Barnes, 171 Kan. 491, 492, 494, 233 P.2d 724.

6. This act does not govern taking sand belonging to state from rivers. Dreyer v. Siler, 180 Kan. 765, 769, 308 P.2d 127.

7. With engineer's approval levee constructed under ch. 24, art. 6, may occupy road "longitudinally." Keimig v. Drainage District, 183 Kan. 12, 14, 17, 325 P.2d 316.

8. Action for mandatory injunction hereunder; appeal dismissed; failure to comply with supreme court rule. Lemon v. Pauls, 189 Kan. 314, 369 P.2d 355.

9. Petition filed by individual held to state cause of action against individuals and county for mandatory injunction. Reeder v. Board of County Commissioners, 193 Kan. 182, 186, 187, 188, 392 P.2d 888.

10. Chief engineer in his discretion decides if proposed construction or improvement is feasible and not adverse to public interest. Klassen v. Reiger, 195 Kan. 61, 63, 403 P.2d 106.

11. Statute envisions permanent not temporary obstructions to watercourses; two year statute of limitation applicable to permanent obstruction. Gowing v. McCandless, 219 Kan. 140, 141, 143, 147, 547 P.2d 338.

12. Cited; statutory system where Kansas board of agriculture is elected by farm organization delegates violates equal protection. Hellebust v. Brownback, 824 F.Supp. 1511, 1514 (1993).

13. Plaintiffs allowed on remand to raise issue regarding defendants' failure to obtain permit before construction of bridge in negligence case. Johnson v. Board of Pratt County Comm'rs, 21 Kan. App. 2d 76, 90, 897 P.2d 169 (1995).

14. County's obtaining after-the-fact permit did not establish that bridge was lawful for all purposes when built. Johnson v. Board of Pratt County Comm'rs, 259 Kan. 305, 319, 324, 913 P.2d 119 (1996).

15. Plaintiff's claim for temporary damage and repair cost of building allegedly damaged by city time barred. Isnard v. City of Coffeyville, 260 Kan. 2, 6, 9, 917 P.2d 882 (1996).

16. Cited; chief engineer correctly decided landowner needed a permit for stream obstruction. Frank v. Kansas Department of Agriculture, 40 Kan. App. 2d 1024, 1025, 1028, 1029, 1032, 198 P.3d 195 (2008).


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