Current through Register Vol. 43, No. 39, September 26, 2024
(a) Each of the following circumstances shall
be considered "due and sufficient cause," as used in
K.S.A.
82a-718 and amendments thereto:
(1) Adequate moisture from natural
precipitation exists for the production of grain, forage, or specialty crops,
as determined by the moisture requirements of the specific crop.
(2) A right has been established or is in the
process of being perfected for use of water from one or more preferred sources
in which a supply is available currently but is likely to be depleted during
periods of drought.
(3) Water is
not available from the source of water supply for the authorized use at times
needed.
(4) Water use is
temporarily discontinued by the owner for a definite period of time to permit
soil, moisture, and water conservation, as documented by any of the following:
(A) Furnishing to the chief engineer a copy
of a contract showing that land that has been lawfully irrigated with a water
right that has not been abandoned is enrolled in a multiyear federal or state
conservation program that has been approved by the chief engineer;
(B) enrolling the water right in the water
right conservation program in accordance with K.A.R. 5-7-4, K.A.R. 5-7-4b, and
K.S.A. 2013 Supp.
82a-741 and amendments thereto;
or
(C) any other method acceptable
to the chief engineer that can be adequately documented by the owner before the
nonuse takes place.
(5)
Management and conservation practices are being applied that require the use of
less water than authorized. If a conservation plan has been required by the
chief engineer, the management and conservation practices used shall be
consistent with the conservation plan approved by the chief engineer to qualify
under this subsection.
(6) The
chief engineer has previously approved the placement of the point of diversion
in a standby status in accordance with K.A.R. 5-1-2.
(7) Physical problems exist with the point of
diversion, distribution system, place of use, or the operator. This
circumstance shall constitute due and sufficient cause only for a period of
time reasonable to correct the problem.
(8) Conditions exist beyond the control of
the owner that prevent access to the authorized place of use or point of
diversion, as long as the owner is taking reasonable affirmative action to gain
access.
(9) An alternate source of
water supply was not needed and was not used because the primary source of
supply was adequate to supply the needs of the water right owner.
(10) The chief engineer determines that a
manifest injustice would result if the water right were deemed abandoned under
the circumstances of the case.
(11)
The water right is located in an area of the state that is closed to new
appropriations of water by regulation or order of the chief engineer but is not
closed by a safe-yield analysis.
(12) The water right has been deposited in a
water bank authorized by K.S.A. 2013 Supp.
82a-761 through K.S.A. 2013 Supp.
82a-773, and amendments
thereto.
(13) Water use, as
authorized by the water right, is suspended because the water right is enrolled
in a multiyear flex account, pursuant to K.S.A. 2013 Supp.
82a-736 and amendments
thereto.
(b) In addition
to circumstances considered due and sufficient cause pursuant to subsection
(a), both of the following requirements shall also be met to constitute due and
sufficient cause for nonuse of water:
(1) The
reason purporting to constitute due and sufficient cause shall have in fact
prevented, or made unnecessary, the authorized beneficial use of
water.
(2) Except for the
temporarily discontinued use of water as provided by paragraph (a)(4) and for
physical problems with the point of diversion or distribution system as
provided by paragraph (a)(7), the owner shall maintain the diversion works in a
functional condition.
(c) Each year of nonuse for which the chief
engineer finds that due and sufficient cause exists shall be considered to
interrupt the successive years of nonuse for which due and sufficient cause
does not exist.
(d) When a verified
report of the chief engineer, or the chief engineer's authorized
representative, is made a matter of record at a hearing held pursuant to
K.S.A.
82a-718, and amendments thereto, that
establishes nonuse of a water right for five or more successive years, the
water right owner shall have the burden of showing that there have not been
five or more successive years of nonuse without due and sufficient
cause.
