Kan. Admin. Regs. § 5-5-11

Current through Register Vol. 43, No. 49, December 5, 2024

Section 5-5-11 - Applications for change in place of use for irrigation purposes

(a) For the purpose of this regulation, "base acreage" means:

(1) the maximum number of acres actually legally irrigated in any one calendar year on or before December 31, 1994 if the perfection period expired on or before December 31, 1994 or the water right is a vested right; or

(2) if the perfection period expires after December 31, 1994, and the perfection period has not expired at the time the change application has been filed, the base acreage shall be the number of acres authorized by the permit; or

(3) if the perfection period expires after December 31, 1994, and the perfection period has expired at the time the change application was filed, the base acreage shall be the maximum acreage legally irrigated in any one calendar year during the perfection period.

(4) Any year in which any of the terms, conditions and limitations of the water right or permit were violated shall not be used to determine base acreage.

(b) An application to change the authorized place of use for irrigation purposes which would permit the applicant to exceed the base acreage by 10 acres or 10 percent, whichever is less, shall not be approved by the chief engineer because it would result in a substantial increase in net consumptive use in violation of K.A.R. 5-5-3 except when one of the six following criteria are met.

(1) Identical places of use.

(A) The change application shall be filed only for the purpose of creating an identical place of use with another water right or rights;

(B) there shall not be a net increase in authorized acres;

(C) each water right involved in the proposed identical overlap in place of use shall be certified by the chief engineer prior to processing the change application if approval of the change application would authorize an increase in base acreage; and

(D) the total quantity authorized by all existing water rights and all permits involved shall be reasonable to irrigate the land authorized after the change in place of use is approved.

(2) Necessity to install more efficient irrigation system; limited acres and quantity.

(A) The change applicant shall submit information demonstrating to the satisfaction of the chief engineer that it is necessary to increase the base acreage so that a significantly more efficient irrigation delivery system may be installed. Types of crops to be grown or tillage practices used shall not be considered in deciding whether the proposed system is more efficient.

(B) If the chief engineer approves the application for a change in place of use pursuant to this subsection, the following limitations shall apply.

(i) The authorized quantity of water under the water right shall be limited to a 5 year fixed allocation, computed by dividing the net irrigation requirement (NIR), as set forth in K.A.R. 5-5-12, for the 50% chance rainfall for the county where the place of use is located, by an efficiency factor of 0.85, multiplying by the base acreage as determined in subsection (a) of this regulation, and then multiplying by 5. In any given year, the water right owner shall still be authorized to divert the maximum annual quantity authorized, provided that the 5 year allocation is not exceeded.

(ii) The maximum number of irrigated acres that shall be allowed under the proposed change in place of use shall be computed by multiplying the currently authorized annual quantity by 0.85 and dividing by the NIR, as set forth in K.A.R. 5-5-12, for the 80% chance rainfall for the county where the place of use is located.

(iii) The approval of the change shall be conditioned so that the use of water in excess of the five year allocation shall result in a two year suspension of all water use under that water right and a subsequent restriction of the authorized place of use to the base acreage at a location specifically set forth in the change approval.

(3) Necessity to install a more efficient irrigation system; limited quantity.

(A) The groundwater management district in which the point of diversion is located shall agree to assume monitoring responsibility to ensure compliance with the conditions of the change approval;

(B) the applicant shall submit information demonstrating to the satisfaction of the chief engineer that it is necessary to increase the base acreage so that a significantly more efficient irrigation delivery system may be installed;

(C) the applicant shall submit a feasible operation plan demonstrating to the satisfaction of the chief engineer that the amount of water available for appropriation under that water right is reasonable to irrigate the number of acres requested to be irrigated; and

(D) the water right owner shall have no recent pattern of water use significantly in excess of the maximum annual quantity of water authorized.

(E) If the chief engineer approves the application for a change in place of use pursuant to this subsection, the following limitations shall apply.

(i) The authorized quantity of water under the water right shall be limited to a 5-year fixed allocation, computed by dividing the net irrigation requirement (NIR), as set forth in K.A.R. 5-5-12, for the 50% chance rainfall for the county where the place of use is located by an efficiency factor of 0.85, multiplying by the base acreage irrigated as determined in subsection (a) of this regulation, and then multiplying by 5. In any given year, the water right owner shall still be authorized to divert the maximum annual quantity authorized, provided that the 5-year allocation is not exceeded.

(ii) The approval of the change shall be conditioned so that the use of water in excess of the five-year allocation shall result in a two-year suspension of all water use under that water right and a subsequent restriction of the authorized place of use to the base acreage at a location specifically set forth in the change approval.

(4) Rotation of the irrigated land within the authorized place of use.

(A) The point of diversion is located outside a groundwater management district or the groundwater management district in which the point of diversion is located shall agree to assume monitoring responsibility to ensure compliance with the conditions of the change approval;

(B) the water right owner shall have no recent pattern of water use significantly in excess of the maximum annual quantity of water authorized; and

(C) approval of the change application shall result in a net increase in the number of acres authorized for irrigation purposes solely for the purpose of rotation of the irrigated land within the authorized place of use.

(D) If the chief engineer approves the application for a change in place of use pursuant to this subsection, the following limitations shall apply.

(i) Approval of the change application shall be limited by the chief engineer so that the net acres physically irrigated in any one calendar year after the change approval shall not exceed the base acreage; and

(ii) the approval shall be conditioned so that the use of water on more than the maximum number of acres authorized to be irrigated in any one calendar year shall result in a two-year suspension of all water use under that water right and a subsequent restriction of the authorized place of use to the base acreage at a location specifically set forth in the change approval.

(5) Specific groundwater management district regulation.

The application shall meet the criteria in a regulation adopted by the chief engineer pursuant to K.S.A. 82a-1028(o) and K.S.A. 82a-706a specifically for changes in place of use for irrigation purposes for the groundwater management district in which the point of diversion is located.

(6) No increase in historic net consumptive use.

The applicant shall demonstrate to the satisfaction of the chief engineer, with an engineering report or similar type of hydrologic analysis, that the historic net consumptive use will not be increased substantially if the proposed change in place of use is approved.

(c) If the chief engineer determines that the application cannot be approved as filed, the applicant shall be notified in writing by the chief engineer prior to denial that the change application requirements have not been met and the reason for the proposed denial.

(1) In this written notice the chief engineer shall allow the applicant 15 days to request time in which to submit additional information to show why the application should be approved.

(2) Upon written request, the applicant shall be given a reasonable time specified by the chief engineer to submit an engineering report or similar type of hydrologic analysis to show that approval of the change application will not substantially increase the historic net consumptive use.

(3) The applicant shall have the burden of demonstrating to the satisfaction of the chief engineer that approval of the change application will not cause the historic net consumptive use to be increased substantially.

(d) Whether or not the time to perfect the water right has expired, including any authorized extensions of time, the application for a change in place of use to change the size of the authorized place of use for irrigation purposes may be approved without the certificate of appropriation being issued except as provided in subsection (b)(1)(C) of this regulation.

(1) If a certificate of appropriation has not been issued, the increase in base acreage shall be determined based on reliable information.

(2) The types of acceptable information shall include, but not be limited to, field inspection reports or U.S. department of agriculture records.

(e) A flow meter meeting the specifications adopted by the chief engineer, and installed and maintained in a manner satisfactory to the chief engineer, shall be required by the chief engineer in all cases where there is an increase in the base acreage authorized to be irrigated by the approval of the change in the place of use, except when:

(1) the application for change in place of use is filed solely to create an identical place of use with other water rights; and

(2) the total quantity authorized by all existing water rights and all permits to appropriate water that are involved equals or exceeds the NIR, as set forth in K.A.R. 5-5-12, in that county for a 50% chance rainfall divided by an irrigation efficiency of 0.85.

Kan. Admin. Regs. § 5-5-11

Authorized by K.S.A. 82a-706a; implementing K.S.A. 1993 Supp. 82a-708b; effective Nov. 28, 1994.