Current through Register Vol. 43, No. 39, September 26, 2024
Except as specified in subsections (b) and (c), an application
to appropriate groundwater for up to 15 acre-feet of water shall be approved if
all of the conditions in subsection (a) are met.
(a)
(1) The
sum of the annual quantity of water requested by the new application and the
total annual quantities authorized by prior approvals of applications because
of an exemption pursuant to this regulation does not exceed 15 acre-feet in a
one-mile-radius circle surrounding the proposed point of diversion.
(2) The application meets the spacing
criteria set forth in K.A.R. 5-25-2 .
(3) The approval of an application will not
authorize an additional quantity of water from an existing non-domestic vested
right, permit, or water right that would result in a total combined annual
quantity of water authorized from the point of diversion in excess of 15
acre-feet.
(4) The applicant
demonstrates that approval of up to 15 acre-feet of water will not impair
existing water rights or permits to appropriate water for beneficial use and
will not prejudicially and unreasonably affect the public interest.
(5) All requirements of
K.S.A.
82a-709 and
K.S.A.
82a-711, and amendments thereto, and K.A.R.
5-3-1 and K.A.R. 5-3-1b for processing a new application to appropriate water
have been met.
(b)
Exemptions to approve a new application to appropriate water in accordance with
this regulation shall not be approved if the exemption would conflict with any
provisions of an intensive groundwater use control area order issued by the
chief engineer pursuant to
K.S.A.
82a-1036 through
K.S.A.
82a-1040, and amendments thereto.
(c) In addition to meeting the conditions in
subsection (a), each application to appropriate groundwater for beneficial use
shall meet the requirements of subsection (d) if the application includes a
proposed point of diversion located within the boundaries of any of the
following drainage basins as defined in K.A.R. 5-6-15 :
(1) Rattlesnake Creek basin;
(2) Arkansas River basin;
(3) Walnut Creek basin;
(4) Pawnee River basin; and
(5) Buckner Creek basin.
(d) The following requirements shall apply to
the applications described in subsection (c):
(1) The maximum annual quantity of water
proposed in the application shall be 15 acre-feet or less.
(2) The proposed point of diversion shall
meet the spacing criteria provided in K.A.R. 5-25-2 .
(3) The authorized quantity of an existing
water right shall be reduced, as provided in paragraph (d)(7), to offset the
annual quantity requested in paragraph (d)(1), and the existing water right
shall divert water from the same source of water supply that has a point of
diversion located according to either of the following:
(A) Within 3.5 miles of the proposed point of
diversion; or
(B) within a one-mile
corridor of the major stream segment designated for stream restoration in the
same basin of the proposed point of diversion.
(4) The point of diversion proposed through
an offset shall not be closer to a stream than the point of diversion reduced
pursuant to paragraph (a)(3) if the authorized well is within three miles of a
stream.
(5) All issues relating to
the possible abandonment of the offsetting water right shall be resolved by the
chief engineer before determining the annual quantity of offset water that is
available from the existing water right.
(6) The approval of the application shall not
authorize an additional quantity of water to be used on a currently authorized
nondomestic place of use.
(7) If
the water right to be used as the offset for the new appropriation is a water
right authorized for irrigation use, the authorized quantity of water needed to
offset the new appropriation of not more than 15 acre-feet of water shall be
calculated as follows:
(A) Step one.
(i) Multiply the net irrigation requirement
for the 50 percent chance rainfall for the county of origin, as specified in
K.A.R. 5-5-12, times the maximum number of acres legally irrigated in any one
calendar year during the perfection period. For vested rights, the acreage used
shall be the maximum acreage legally irrigated in any one calendar year before
June 28, 1945.
(ii) The calculation
made in paragraph (d)(7)(A)(i) shall result in the maximum annual quantity of
water that could be changed to another type of beneficial use if the entire
water right were changed pursuant to K.A.R. 5-5-9(a)(1) .
(B) Step two.
(i) Divide the annual quantity of water
desired to be changed to the new beneficial use by the maximum annual quantity
of water that could be changed if the entire water right were changed to the
new use.
(ii) The calculation made
in paragraph (d)(7)(B)(i) shall result in the percentage of the entire reduced
water right that will be changed to the new use. The remaining percentage of
the offsetting water right may be retained by the owner of the irrigation water
right.
(C) Step three.
(i) Multiply the remaining percentage
calculated in paragraph (d)(7)(B)(ii) times the total currently authorized
quantity. The resulting product shall be the annual quantity of water that may
be retained by the owner of the irrigation water right.
(ii) The portion of the authorized annual
quantity of water not retained by the irrigator as described in paragraph
(d)(7)(C)(i) shall be permanently reduced from the authorized annual quantity
of the offsetting water right and used to offset the new
appropriation.
(8) If the water right to be used as the
offset for the new appropriation is an existing water right authorized for
non-irrigation use, the total net consumptive use of the offsetting water right
after the change and the new appropriation shall not exceed the net consumptive
use of the offsetting water right before the change.
(9) The place of use authorized by the
offsetting water right for irrigation shall be reduced in proportion to the
reduction in the maximum annual quantity of water as determined in paragraph
(d)(7)(A)(ii). The directions specified in K.A.R. 5-5-11(b)(2)(B)(ii) shall be
followed to determine the number of acres that may be retained.
(e) After the application has been
approved pursuant to this regulation, no application to change that water right
shall be approved if that approval would authorize the water use to be diverted
from any other point of diversion authorized when the application is filed or
to be used on any other place of use authorized when the application for change
is filed.
(f) An application
approved as an exemption under this regulation shall not be leased or placed in
a water bank so that the approved water use can be diverted at another
location.
