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 a diversion of water in excess of the authorized quantity, a
written penalty order may be issued by the chief engineer pursuant to
82a-737(e), and amendments thereto.
(b) 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 this state
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.
(c) Penalty categories. Any violation for
diversion of water in excess of the authorized quantity may be subject to the
penalties specified in one of the following categories, as listed in subsection
(e): category 1, category 2, category 3, or category 4.
(1) A category 1 penalty may be assessed if
no penalty for diversion of water in excess of the authorized quantity has been
assessed against the water right for a violation that occurred during the five
calendar years preceding the calendar year in which the most recent violation
occurred.
(2) A category 2 penalty
may be assessed if one prior penalty for diversion of water in excess of the
authorized quantity has been assessed against the water right for a violation
that occurred during the five calendar years preceding the calendar year in
which the most recent violation occurred.
(3) A category 3 penalty may be assessed if
two prior penalties for diversion of water in excess of the authorized quantity
have been assessed against the water right for a violation that occurred during
the five calendar years preceding the calendar year in which the most recent
violation occurred.
(4) A category
4 penalty may be assessed if three or more prior penalties for diversion of
water in excess of the authorized quantity have been assessed against the water
right for a violation that occurred during the five calendar years preceding
the calendar year in which the most recent violation occurred.
(d) Severity level of violation.
Any violation may be assigned a severity level based upon the amount of water
diverted in excess of the authorized quantity, according to the following:
(1) A water right that has exceeded its
authorized quantity by less than an amount equal to the amount resulting from
24 hours of pumping at the maximum authorized rate may be assessed a maximum of
a severity level A penalty.
(2) A
water right that has exceeded its authorized quantity by an amount equal to at
least the amount resulting from 24 hours of pumping but less than an amount
equal to 72 hours of pumping at the maximum authorized rate may be assessed a
maximum of a severity level B penalty.
(3) A water right that has exceeded its
authorized quantity by an amount equal to at least the amount resulting from 72
hours of pumping at the maximum authorized rate may be assessed a maximum of a
severity level C penalty.
(e) Penalty table. The following table may be
used to determine the maximum civil penalty and the maximum reduction or
modification of the water right that may apply to each violation, based on the
penalty category and the severity level of the violation:
| Penalty category |
Severity level A |
Severity level B |
Severity level C |
| 1 |
Written notice of noncompliance |
$1,000 per day and a reduction in quantity equal to two
times the quantity overpumped, not to exceed the annual authorized quantity
|
$1,000 per day and a reduction in quantity equal to
three times the quantity overpumped, not to exceed the annual authorized
quantity |
| 2 |
$1,000 per day and a reduction in quantity equal to two
times the quantity overpumped, not to exceed the annual authorized quantity
|
$1,000 per day and a one-year suspension |
$1,000 per day and three-year suspension |
| 3 |
$1,000 per day and a one-year suspension |
$1,000 per day and a three-year suspension |
$1,000 per day and a four-year suspension |
| 4 |
$1,000 per day and a three-year suspension |
$1,000 per day and a four-year suspension |
$1,000 per day and a five-year suspension |
(f)
Mitigating factors. The monetary penalties and suspension terms specified in
subsection (e) may be reduced due to one or more of the following factors:
(1) The absence of any prior penalty assessed
under the Kansas water appropriation ad, or the implementing regulations,
during the five calendar years preceding the calendar year in which the most
recent violation occurred;
(2) the
absence of intentional noncompliance or gross negligence; or
(3) prompt cessation or correction of the
violation upon discovery or notification by the chief engineer or an authorized
representative of the chief engineer or by personnel from a groundwater
management district.
(g)
Notice of noncompliance. Any notice of noncompliance issued under this
regulation may be considered a category 1 penalty for purposes of classifying
any future violation.
(h) Multiple
water rights.
(1) If multiple water rights or
permits authorize the use of water from a single point of diversion and if the
water used exceeds the total quantity of water authorized by the water rights
and permits, all water rights and permits under which the water was lawfully
diverted may be deemed to be violated unless sufficient evidence to the
contrary is offered by one or more of the water right owners.
(2) Any monetary penalty assessed under this
regulation may be applied jointly and separately to the water rights, any
temporary quantity reduction may be applied proportionally to each water right
based on the authorized quantities for the water rights, and any suspension may
be applied to all the water rights, unless it can be determined that the
quantity available under a given water right was not exceeded.
(i) Penalties for water rights in
a term permit. For each instance of diversion of water in excess of the total
authorized quantity under 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. For each revocation, a suspension may be applied to the
base water right for what would have been the remainder of the term of the
permit, in addition to any penalty assessed according to subsection (e). Any
additional reduction or suspension may run consecutively with the suspension
for what would have been the remainder of the term of the term
permit.
(j) Expiration of penalty.
(1) Any penalty assessed by the chief
engineer for diversion of water in excess of the authorized quantity under this
regulation may expire four calendar years after the end of the calendar year in
which the penalty was assessed.
(2)
Any penalty that has not expired may be counted as a prior penalty for purposes
of determining the category level of any future penalty for diversion of water
in excess of the authorized quantity.
(3) A penalty that has expired under
paragraph (j)(1) shall not be considered in assessing a future penalty under
this regulation or under
K.A.R.
5-14-10.
(4) A penalty that has expired shall not be
expunged from the record of a water right and, except as otherwise provided in
this regulation, may be considered by the chief engineer for any purposes
pursuant to the Kansas water appropriation act,
K.S.A.
82a-701 et seq. and amendments thereto, and
the implementing regulations.
