Current through Register Vol. 43, No. 12, March 20, 2024
(a)
Penalty order. In addition to any other authorized enforcement procedures, if
the chief engineer finds that any of the violations specified in
K.S.A.
82a-737, and amendments thereto, have
occurred, a written order may be issued by the chief engineer pursuant to
K.S.A.
82a-737(e), and amendments
thereto.
(b) Civil penalties.
(1) Any civil penalty assessed in any order
issued under this regulation may be no greater than the civil penalties
specified in subsection (m) for each applicable violation. Any day on which the
violation continues to occur may constitute a separate offense. If an order is
issued, the chief engineer may include all known violations of this regulation
or K.A.R. 5-14-12, or both, and all penalties pertaining to a given water right
in the order. The order may include violations of this regulation or K.A.R.
5-14-12, or both, applicable to multiple water rights. Separate penalties may
be assessed for each violation cited in a single order.
(2) The monetary penalties and suspension
terms specified in subsection (m) may be reduced due to one or more of the
following factors:
(A) The absence of any
prior penalty assessed under the Kansas water appropriation act, or
implementing regulations, during the five calendar years preceding the calendar
year in which the most recent violation occurred and if that calendar year is
not determinable, then preceding the calendar year in which the order is issued
for the most recent violation;
(B)
the absence of intentional noncompliance or gross negligence; or
(C) prompt cessation or correction of the
violation upon discovery or notification by the chief engineer or an authorized
representative or by personnel from a groundwater management
district.
(c)
Lower-tier miscellaneous. Any of the following actions or inactions may
constitute a lower-tier miscellaneous violation:
(1) Operating and maintaining a water
flowmeter or other water-measuring device required by the chief engineer that
is out of compliance as specified in
K.A.R.
5-1-9, unless the violation is a meter
manipulation;
(2) failure to
properly implement a conservation plan required by the chief
engineer;
(3) committing a waste of
water; and
(4) violating an order
of the chief engineer or a term, condition, or limitation of a water right,
approval of application, term permit or temporary permit, or any regulation not
otherwise specifically listed as a violation in this regulation.
(d) Failure to provide
information. Any of the following actions or inactions may constitute a failure
to provide information:
(1) Failure to file a
required monthly report; and
(2)
failure to provide complete and accurate water use or other data, information,
or records requested by the chief engineer or authorized representative, except
the annual water use reports required by
K.S.A.
82a-732 and amendments thereto, within the
following time frames:
(A) For information
regarding water use during administration of a water right, within 24 hours of
the chief engineer's or authorized representative's request; and
(B) for all other information, within 15 days
of the request made by the chief engineer or authorized representative or
within any other time frame prescribed by the chief engineer or authorized
representative when the request is made.
(e) Unauthorized diversion or threat to
divert. Any of the following actions may constitute an unauthorized diversion
or threat to divert:
(1) A threat to divert
water without authorization from the chief engineer;
(2) irrigating an unauthorized place of
use;
(3) diverting water at a rate
in excess of the authorized rate of diversion;
(4) diverting water from an unauthorized
point of diversion of water; and
(5) applying water to an unauthorized type of
beneficial use.
(f)
Denial of access. It may be a violation for any person to deny access to
authorized agents of the chief engineer as required by
K.S.A.
82a-706b, and amendments thereto.
(g) Lack of water flowmeter. It may be a
violation for any person to fail to timely install, or to remove and fail to
replace, a required water flowmeter or other acceptable water-measuring
device.
(h) Noncompliance with a
substantial order. Any of the following actions may constitute a violation of a
substantial order of the chief engineer:
(1)
Violating a cease-and-desist order issued by the chief engineer;
(2) violating an order of the chief engineer
issued pursuant to
K.S.A.
82a-706b, and amendments thereto;
(3) violating any order of the chief engineer
issued pursuant to
K.S.A.
82a-1038,
K.S.A.
82a-1041, or
K.S.A.
82a-745, and amendments thereto, or any
associated term permit, relating to an intensive groundwater use control area,
local enhanced management area, or water conservation area; and
(4) violating a minimum desirable streamflow
order issued by the chief engineer pursuant to
K.A.R.
5-15-1 through
5-15-3.
(i) Meter manipulation.
(1) Any of the following actions may
constitute meter manipulation:
(A) Causing a
water flowmeter or other acceptable water-measuring device to show an incorrect
or inaccurate reading by any method, including any of the following:
(i) Tampering with the meter in any
way;
(ii) physically altering the
meter reading or the propeller;
(iii) operating the water flowmeter in
reverse orientation or running the water flowmeter in reverse by any means;
or
(iv) altering a water flowmeter
from its factory specifications in a manner that causes the meter to
underreport actual water use; and
(B) removing a seal placed on a pump,
diversion device, or water flowmeter without the written permission of the
chief engineer or the chief engineer's authorized representative.
(2) If a penalty is assessed for
meter manipulation under this regulation and more than one water right is
serviced by a single meter, then a single penalty may be assessed for all water
rights serviced by that meter.
(j) Falsification. Any of the following
actions may constitute falsification:
(1)
Providing false water use data, including providing inaccurate information
during a perfection period or after a water right has been certified, that
under reports or overreports water use; and
(2) falsifying any other required data or
information.
(k)
Noncompliance with a special condition of change application approval.
(1) Any of the following actions may
constitute a violation of a special condition of a change application approval:
(A) Violating any of the terms and conditions
of a multiyear allocation; and
(B)
violating a term or condition limiting the net acres that may be irrigated in
any one calendar year pursuant to an approval to allow annual rotation of the
authorized place of use for irrigation.
(2) The suspension specified in subsection
(m) may apply to all or any portion of the annual water use authorized by the
water right, any term permit, and any water right upon which a multiyear
allocation or rotation was based. Additionally, a subsequent restriction of the
authorized place of use to the base acreage at a location specified in the
change approval may be applied. After any suspension has expired, the water
right may revert to all conditions in effect on the water right before approval
of the change application that authorized the multiyear allocation or
rotation.
(l) Penalties
for water rights in a term permit. If falsification or meter manipulation
occurs during the term of a multiyear flex account term permit or other term
permit during which the base water right is suspended, the chief engineer may
revoke the term permit, and the base water right may be suspended for what
would have been the remainder of the term permit. In addition to the
suspension, a penalty corresponding to the falsification or meter manipulation
violation cited may be imposed. Any additional reduction or suspension may run
consecutively with the suspension for what would have been the remainder of the
term permit.
(m) Penalty table. The
following table may specify the maximum civil penalty and the maximum
suspension term that may be assessed by the chief engineer for each violation
of this regulation:
| Violation |
Monetary penalty |
Maximum number of days monetary penalty applied |
Suspension of water use |
| Lower-tier miscellaneous |
$500 per day |
20 |
One year |
| Failure to provide information |
$500 per day, for each day the violation exists |
20 |
One year |
| Unauthorized diversion or threat to divert |
$500 per day |
20 |
One year |
| Denial of access |
$1,000 per day |
10 |
Three years |
| Lack of water flowmeter |
$1,000 per day |
10 |
Three years |
| Noncompliance with a substantial order |
$1,000 per day |
10 |
Five years |
| Meter manipulation |
$1,000 per day |
10 |
Five years |
| Falsification |
$1,000 per instance of falsification |
Not applicable |
Five years |
| Noncompliance with a special condition of a change
application approval |
$1,000 per day |
10 |
Two years |
(n)
Owner liability and effect of penalty on water right. Any civil penalty and any
temporary reduction or suspension of the quantity of water authorized to be
diverted under a water right in Kansas may be enforced against the owner or
owners of the water right and shall attach to and transfer with the water right
to any subsequent heir, assignee, purchaser, or other subsequent holder of the
water right.
(o) Appeal. Any person
aggrieved by an order of the chief engineer may request a review pursuant to
K.S.A.
82a-1901, and amendments thereto, and after
exhaustion of administrative remedies, may appeal to the district court in the
manner provided by the act for judicial review and civil enforcement of agency
actions.
