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82a-711. Permits to appropriate water; standards for approval of use; review of action on application. (a) If a proposed use neither impairs a use under an existing water right nor prejudicially and unreasonably affects the public interest, the chief engineer shall approve all applications for such use made in good faith in proper form which contemplate the utilization of water for beneficial purpose, within reasonable limitations except that the chief engineer shall not approve any application submitted for the proposed use of fresh water in any case where other waters are available for such proposed use and the use thereof is technologically and economically feasible. Otherwise, the chief engineer shall make an order rejecting such application or requiring its modification to conform to the public interest to the end that the highest public benefit and maximum economical development may result from the use of such water.

(b) In ascertaining whether a proposed use will prejudicially and unreasonably affect the public interest, the chief engineer shall take into consideration:

(1) Established minimum desirable streamflow requirements;

(2) the area, safe yield and recharge rate of the appropriate water supply;

(3) the priority of existing claims of all persons to use the water of the appropriate water supply;

(4) the amount of each claim to use water from the appropriate water supply; and

(5) all other matters pertaining to such question.

(c) With regard to whether a proposed use will impair a use under an existing water right, impairment shall include the unreasonable raising or lowering of the static water level or the unreasonable increase or decrease of the streamflow or the unreasonable deterioration of the water quality at the water user's point of diversion beyond a reasonable economic limit. Any person aggrieved by any order or decision by the chief engineer relating to that person's application for a permit to appropriate water may petition for review thereof in accordance with the provisions of K.S.A. 82a-1901, and amendments thereto.

History: L. 1945, ch. 390, § 11; L. 1957, ch. 539, § 16; L. 1977, ch. 356, § 6; L. 1980, ch. 332, § 3; L. 1986, ch. 392, § 3; L. 1991, ch. 292, § 3; L. 1999, ch. 130, § 5; July 1.

Law Review and Bar Journal References:

Powers and duties of chief engineer of the Kansas state board of agriculture discussed, Mike Foust, 11 W.L.J. 251, 258, 264 (1972).

"Kansas Groundwater Management Districts," John C. Peck, 29 K.L.R. 51, 61, 77, 79 (1980).

"Kansas Water Appropriation Statutes and the Oil and Gas Industry in Kansas," Eva N. Neufeld, 50 J.B.A.K. 43, 44 (1981).

"Legal Constraints on Diverting Water from Eastern Kansas to Western Kansas," John C. Peck, 30 K.L.R. 160, 165, 174, 175, 178 (1982).

"Loss of Water Rights for Non-Use," John C. Peck and Constance Crittenden Owen, 43 K.L.R. 801, 806, 824 (1995).

"1999 Legislative Wrap Up," Ron Smith, 68 J.K.B.A. No. 7, 16 (1999).

"Property Rights in Groundwater - Some Lessons from the Kansas Experience," John C. Peck, XII Kan. J.L. Pub Pol'y No. III, 493 (2003).

"Groundwater Management in Kansas: A Brief History and Assessment," John C. Peck, 15 Kan. J.L. & Pub. Pol'y, No. 3, 441 (2006).

"Groundwater Management in GMD4: Has It Succeeded?" Wayne Bossert, 15 Kan. J.L. & Pub. Pol'y, No. 3, 541 (2006).

Attorney General's Opinions:

Appropriation of water for beneficial use; application for permits; duties of chief engineer as to applications. 80-130.

Water conservation measures; existing water rights; compensable takings. 88-6.

Reduction in amount of groundwater permitted to be pumped as condition of approval of application for change in use. 95-92.

Regulations adopted by chief engineer at the request and applicable only to one groundwater management district are preempted by those which apply statewide. 98-24.

CASE ANNOTATIONS

1. Water right principles discussed in challenge to the authority of public wholesale water supply district. Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 210 P.3d 105 (2009).

2. KWAA confers standing on water appropriation applicants and applies to agency review, while KJRA confers standing on a party to the proceeding and applies to judicial review. Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 249 P.3d 434 (2011).

3. Case was remanded to the division of water resources to determine the reasonableness of the chief engineer's monitoring plan. Clawson v. Kansas Dept. of Agriculture, 49 Kan. App. 2d 789, 315 P.3d 896 (2013).


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