Kansas Administrative Regulations
Agency 5 - DEPARTMENT OF AGRICULTURE-DIVISION OF WATER RESOURCES
Article 22 - EQUUS BEDS GROUNDWATER MANAGEMENT DISTRICT NO. 2
Section 5-22-6 - Noncompliance; penalties; appeal procedures

Universal Citation: KS Admin Regs 5-22-6

Current through Register Vol. 43, No. 12, March 20, 2024

(a) Any person may file with the board a written or verbal complaint that someone is allegedly violating any regulation of the district, any provision of the Kansas water appropriation act, or a term, condition, or limitation of an approval of application or a water right.

(b) The alleged violation shall be investigated by the district staff.

(c) A written report of the investigation shall be prepared by the district staff.

(d) If the investigation determines that a violation of a regulation of the district has occurred, an order shall be issued by the board or its designee. The order shall specify the following:

(1) What the violation of the regulation is;

(2) what actions are necessary to correct the violation;

(3) what a reasonable time is for correcting the violation. Extensions of time to correct a violation may be granted by the board if good cause is shown by the violator or owner;

(4) that the order will become effective immediately; and

(5) that a hearing may be requested within 15 days of the issuance of the order. The request for a hearing may include a request for a stay of the order. If the person shows good cause why a stay should be granted, a stay may be granted by the board.

(e) The owner or owners of the approval of application or water right, as shown in the records of the district, shall initially be notified of the violation verbally, in writing, or by other means. Regardless of the means of initial notification, a copy of the order shall also be served by delivering a copy of the order in person or by restricted mail.

(f) The record of the complaint, the investigation, and the notice of violation shall be made a part of the official records of the district.

(g) If the violation is corrected by the deadline specified by the board, the violator shall notify the district staff. An inspection shall be conducted by the district staff to determine if the violation has been corrected. If the violation has been corrected, the diversion of water may continue within the terms, conditions, and limitations of the approval of application or water right.

(h) If the violation is not corrected by the deadline specified by the board, an order requiring that unauthorized or illegal diversion of water cease until the violation is corrected shall be issued by the district.

(i) If the violator ceases diversion of water and then corrects the violation, the violator shall notify the district when the violation is corrected. The diversion works and the authorized place of use, as appropriate, shall be inspected by the district staff to determine whether the violation has been corrected. If the board determines that the violation has been corrected, the order prohibiting the diversion of water shall be rescinded by the board. When the owner or violator receives notice from the district that the order prohibiting the diversion of water has been rescinded, the diversion of water may recommence.

(j) If the violator performs any act described in subsection (a), any of the following actions may be taken by the board:

(1) If applicable, bring an injunctive action to enforce the order of the district;

(2) if applicable, request enforcement assistance from the chief engineer;

(3) if applicable, request that criminal proceedings be brought pursuant to K.S.A. 82a-728, and amendments thereto;

(4) if applicable, request that the county attorney or district attorney initiate injunctive remedies pursuant to K.S.A. 68-184, and amendments thereto, to prevent the occurrence of a nuisance;

(5) enter into a consent order with the violator specifying the remedial actions that shall be taken by the violator;

(6) require the installation of a water flowmeter;

(7) take any other legally permissible enforcement action; or

(8) any combination of the actions specified in paragraphs (j)(1) through (7).

(k) After the violator has been issued an order as specified in subsection (d), the violator, or anyone whose legal rights, duties, privileges, immunities, or other legal interests could be affected by the order, may appeal the order to the board. The appeal shall be filed within 15 days of the issuance of the order.

(l) The appeal petition shall state the basis for the appeal and shall be accompanied by documentation supporting the appeal.

(m) During the appeal, any relevant information or data may be considered by the board, including relevant data and information submitted by any person whose legal rights, duties, privileges, immunities, or other legal interests could be affected by the order.

(n) After consideration of the appeal, one of the following actions shall be taken by the board:

(1) Remand the matter to the district staff with instructions for additional investigation; or

(2) notify the violator and the chief engineer of the board's final decision. The violator and all other parties shall be notified of the board's decision by certified mail.

(o)

(1) Within 15 days after the service of the board's decision on the violator and any other affected party, the violator or any other affected party may file with the board a written request for reconsideration, which shall state the specific grounds for the request for reconsideration. The petition for reconsideration shall be deemed denied if not acted on by the board within 30 days.

(2) If the request for reconsideration is granted by the board, an administrative hearing shall be held by the board within 30 days of the date on which the request is filed with the board. After the hearing, the board may affirm, reverse all or part of, or modify the order of the board.

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