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Substitute for HOUSE BILL No. 2114
AN A CT concerning water; relating to dams, levees and other water obstructions;
clarifying which structures shall be considered water obstructions and not a dam;
increasing application fees for a permit to construct, modify or add to a dam;
requiring post-construction permit fees to construct, modify or add to a water
obstruction or to change or diminish the course, current or cross section of a stream;
requiring any licensed professional engineer who conducts inspections required by
the act to be approved by the chief engineer or to be a certified intern engineer who is
under the supervision of such a licensed professional engineer; adding a civil penalty
of not less than $100 or more than $1,000 per violation; remitting civil penalty
amounts to the state general fund; amending K.S.A. 82a-301, 82a-302, 82a-303b and
82a-305a and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 82a-301 is hereby amended to read as follows:
82a-301. (a) (1) Except as provided in subsections (c) and (d), without
the prior written consent or permit of the chief engineer of the division
of water resources of the Kansas department of agriculture, it shall be
unlawful for any person, partnership, association, corporation or
agency or political subdivision of the state government to:
(A) Construct, modify or add to any dam;
(B) construct, modify or add to any water obstruction in a
designated stream; or
(C) change or diminish the course, current , or cross section of any
designated stream within this state.
(2) Any application for any permit or consent shall be made in
writing in such form as specified by the chief engineer.
(3) Revetments for the purpose of stabilizing a caving bank which
that are properly placed shall not be construed as obstructions for the
purposes of this section.
(b) As used in K.S.A. 82a-301 et seq., and amendments thereto:
(1) "Dam" means any artificial barrier including appurtenant
works with the ability to impound water, waste water or other liquids
that has a height of 25 feet or more; or has a height of six feet or greater
and a storage volume at the top of the emergency spillway elevation of
50 or more acre feet. The height of a dam or barrier shall be measured
from the lowest elevation of the streambed, downstream toe or outside
limit of the dam to the elevation of the top of the dam.
(2) "Designated stream" means a natural or man-made channel
that conveys drainage or runoff from a watershed having an area of:
(A) One or more square miles in zone one, which includes all
geographic points located in or east of Washington, Clay, Dickinson,
Marion, Harvey, Sedgwick or Sumner counties;
(B) two or more square miles in zone two, which includes all
geographic points located west of zone one and in or east of Smith,
Osborne, Russell, Barton, Stafford, Pratt or Barber counties; or
(C) three or more square miles in zone three, which includes all
geographic points located west of zone two.
(3) "Modification" means any action that the chief engineer
determines would change the physical dimensions or hydraulic
characteristics of any dam, stream obstruction or channel change that
is under the jurisdiction of the chief engineer pursuant to this act.
(c) (1) The prior written consent or permit of the chief engineer
shall not apply to water obstructions that meet the following
requirements:
(A) The change in the cross section of a designated stream is
obstructed less than 5% and the water obstruction or change is
contained within a land area measuring 25 feet or less along the stream
length; or
(B) (i) the water obstruction is not a dam as defined in subsection
(b);
(ii) the water obstruction is not located within an incorporated
area;
(iii) every part of the water obstruction, and any water impounded
by such obstruction, is located more than 300 feet from any property
boundary; and
(iv) the watershed area above the water obstruction is five square
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miles or less.
(2) If the water obstruction does not meet the requirements of
subsection (c)(1)(B)(iii), but meets all other requirements of subsection
(c)(1)(B), such water obstruction may be exempted from the permitting
requirements of subsection (a) if the chief engineer determines such
water obstruction has minimal impact upon safety and property based
upon a review of the information, to be provided by the owner,
including:
(A) An aerial photo or topographic map depicting the location of
the proposed project, the location of the stream, the layout of the water
obstruction, the property lines and names and addresses of adjoining
property owners; and
(B) the principal dimensions of the project including, but not
limited to, the height above streambed.
(3) Notwithstanding any other provision of this section, the chief
engineer may require a permit for any water obstruction described in
this subsection if the chief engineer determines such permit is
necessary for the protection of life or property.
(d) The prior written consent or permit of the chief engineer shall
not be required for construction or modification of a hazard class A
dam that:
(1) Has a height of less than 30 feet and a storage volume at the
top of the emergency spillway elevation of less than 125 acre feet, and
the dam location and dimensions have been registered with the division
of water resources in a written form prescribed by the chief engineer; or
(2) is a wastewater storage structure for a confined feeding facility
that has been approved by the secretary of health and environment
pursuant to K.S.A. 65-171d, and amendments thereto. Any structure
that meets the provisions of subsection (b)(1) shall be considered a
water obstruction and not a dam if the primary purpose of the structure
is to serve as:
(1) Dry detention road fill for state, county or municipal
government;
(2) a low head dam that has a maximum height below the lowest
stream bank; or
(3) a wastewater storage structure for a confined feeding facility
that has been approved by the secretary of health and environment
pursuant to K.S.A. 65-171d, and amendments thereto.
(e) Any structure that meets the requirements for a hazard class A
dam as provided in this act shall be considered a water obstruction and
not a dam if the structure meets the following additional criteria:
(1) The structure impounds water under a vested right, water right
or permit to appropriate water for irrigation, stockwater or sediment
control use pursuant to the Kansas water appropriation act, K.S.A.
82a-701 et seq., and amendments thereto, or is required to obtain a
permit to appropriate water for irrigation, stockwater or sediment
control use in order to lawfully impound water; and
(2) the structure has a height of less than 30 feet and a storage
volume at the top of the emergency spillway elevation of less than 125
acre feet.
Sec. 2. K.S.A. 82a-302 is hereby amended to read as follows: 82a-
302. (a) Except as otherwise provided for general permits, each
application for the consent or permit required by K.S.A. 82a-301, and
amendments thereto, shall be accompanied by complete maps, plans,
profiles and specifications of such construction, modification or
addition proposed to be made, the required application fee as provided
in subsection (b) unless otherwise exempted, and such other data and
information as the chief engineer may require. The chief engineer shall
adopt rules and regulations for the issuance of a general permit which.
A general permit may be issued for projects which that require limited
supervision and review.
(b) (1) The application fee for a permit to construct, modify or add
to a dam shall be $200:
(A) $250 for a hazard class A dam that does not qualify for an
Substitute for HOUSE BILL No. 2114—page 3
exemption provided for in K.S.A. 82a-301(d) or (e), and amendments
thereto;
(B) $500 for a hazard class B dam; and
(C) $1,000 for a hazard class C dam.
(2) The application fee for a permit to construct, modify , or add to
a water obstruction or to change or diminish the course, current or cross
section of a stream shall be based on the watershed area.
Watershed Area Above the
Project Permit Application Fee Post-Construction Permit Fee
Less than 5 square miles $100 $200
Between 5 and 50 square miles $200 $400
More than 50 square miles $500 $800
(3) The application fee for a general permit shall be $100.
(c) All fees collected by the chief engineer pursuant to this section
shall be remitted to the state treasurer as provided in K.S.A. 82a-328,
and amendments thereto.
(d) The chief engineer shall prominently display an inundation
map for each permitted dam on the department's website and provide
copies of such inundation map to the zoning authority, or the county
clerk if the county does not have a zoning authority, of each county
where any land included on an inundation map is located. If additional
funding is available, the chief engineer shall prepare or update the
inundation maps of all permitted dams for which current inundation
maps have not been provided to the chief engineer, display such
inundation maps on the department's website and provide copies of
such inundation maps to the respective county governments as
provided for in this section.
(e) (1) On and after July 1, 2026, the owner of any land located in
the inundation zone of a dam that is under the jurisdiction of the chief
engineer pursuant to this act who sells, subdivides or otherwise
transfers any land within such inundation zone separate from the dam
shall file a notice of inundation zone with the register of deeds in the
county or counties for each parcel of land sold, subdivided or
otherwise transferred. The notice of inundation zone shall contain the
following language:
On __________________ this property is located in the inundation
(date of sale, division or transfer)
zone of a dam or structure located at ____________ .
(legal description of property)
(2) A landowner who fails to file a notice of inundation zone in
accordance with paragraph (1) shall be responsible for paying the
costs of inspection that are in excess of the inspection costs that would
have been required by the dam's previous lower hazard classification if
K.S.A. 82a-303b(a)(1)(D)(7), and amendments thereto, applies to such
dam.
Sec. 3. K.S.A. 82a-303b is hereby amended to read as follows:
82a-303b. (a) (1) In order to secure conformity with adopted rules and
regulations and to assure compliance with the terms, conditions or
restrictions of any consent or permit granted pursuant to the provisions
of K.S.A. 82a-301 through 82a-303, and amendments thereto, (A) The
chief engineer or an authorized representative of the chief engineer
who is a licensed professional engineer approved by the chief engineer
or an intern engineer who is certified pursuant to K.S.A. 74-7021(b),
and amendment thereto, and is under the supervision of such a licensed
professional engineer shall have the power and the duty to inspect any
dam or other water obstruction.
(B) Upon a finding pursuant to K.S.A. 82a-303c(a), and
amendments thereto, by the chief engineer that a dam is unsafe, the
chief engineer shall order an annual inspection of the dam until it:
(i) Such dam is either in compliance with all applicable provisions
of this act, any rules and regulations promulgated pursuant to this act,
permit conditions and orders of the chief engineer; or
(ii) the dam is removed.
(C) The safety inspection shall be conducted by the chief engineer
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or authorized representative and the cost shall be paid by the dam
owner. For the purpose of assessing inspection fees as provided for in
this section, the class and size of a dam shall be defined by rules and
regulations adopted by the chief engineer pursuant to K.S.A. 82a-303a,
and amendments thereto.
(D) For inspections conducted by the chief engineer or the chief
engineer's authorized representative, inspection fees are each
inspection other than an inspection that a dam owner elects to have
conducted at the dam owner's own expense as provided for in this act,
the dam owner shall pay inspection fees to the department as follows:
Size of Dam Inspection fee
Class 1 $1,500 $1,000
Class 2 $1,500 $1,000
Class 3 $2,500 $2,000
Class 4 $4,000 $3,000
(2) Each hazard class C dam shall be required to have a safety
inspection conducted by a licensed professional engineer qualified in
design, construction, maintenance and operation of dams once every
three years, unless otherwise ordered by the chief engineer every three
years.
(3) Each hazard class B dam shall be required to have a safety
inspection conducted by a licensed professional engineer qualified in
design, construction, maintenance and operation of dams once every
five years unless otherwise ordered by the chief engineer every five
years.
(4) (A) Each hazard class A dam that does not qualify for an
exemption provided for in K.S.A. 82a-301(d) or (e) , and amendments
thereto, shall be required to have a safety inspection conducted every
10 years.
(B) A watershed district organized pursuant to K.S.A. 24-1201 et
seq., and amendments thereto, may enter into an agreement with the
chief engineer that provides for such district to conduct limited safety
inspections in lieu of the safety inspection required by subparagraph
(A).
(5) Safety inspections required by this act shall be conducted by
the chief engineer or an authorized representative of the chief engineer
who is a licensed professional engineer approved by the chief engineer
or an intern engineer who is certified pursuant to K.S.A. 74-7021(b),
and amendment thereto, and under the supervision of a licensed
professional engineer. A dam owner may elect to have any required
safety inspection performed at the dam owner's own expense, provided
that such inspection is performed by an engineer authorized to perform
inspections in accordance with this act.
(6) A safety inspection shall not be required to be conducted for
any dam that the dam owner has submitted an inundation map to the
chief engineer that demonstrates that failure of the dam would only
inundate real property or fixtures to real property owned by the dam
owner.
(7) If the chief engineer reclassifies a dam to a higher hazard
classification and the reclassification is not necessitated by any actions
of the dam owner, the dam shall be subject to the inspection
requirements for the higher hazard classification in accordance with
this act, but the dam owner shall not be charged for inspections that
are in excess of those that would have been required by the previous
lower hazard classification.
(8) Within 60 days of the date of inspection, a report of the
inspection shall be provided to issued by the chief engineer or provided
to the chief engineer by the licensed professional engineer who
conducted or supervised the inspection. The report shall document the
physical condition of the dam, describing any deficiencies observed, an
analysis of the capacity of the dam and its spillway works, compliance
of the dam with approved plans and permit conditions, changes
observed in the condition of the dam since the previous inspection, an
assessment of the hazard classification of the dam including a statement
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that the engineer either agrees or disagrees with the current
classification, and any other information relevant to the safety of the
dam or specifically requested by the chief engineer.
(5) Upon failure of a dam owner to comply with the applicable
inspection interval, the chief engineer or such chief engineer's
authorized representative shall conduct a mandatory inspection of the
dam and the costs as established by this act for the inspection shall be
paid by the owner, in addition to any other remedies provided for
violations of this act.
(6)(9) The failure to file provide a complete and timely report as
required by the provisions of this act , or and the failure to submit the
fees assessed for inspections conducted by the chief engineer or the
chief engineer's authorized representative to the department as required
by this section shall be deemed a violation of this act and subject to the
penalties provided by K.S.A. 82a-305a, and amendments thereto.
(b) For the purpose of inspecting any dam or other water
obstruction, the chief engineer or an authorized representative of the
chief engineer , including any engineer authorized to perform
inspections in accordance with this act, shall have the right of access to
private property. Except for an instance when the chief engineer
determines that emergency action pursuant to K.S.A. 82a-303c(b), and
amendments thereto , is or may be necessary, the right of access to
private property provided for in this subsection shall be conditioned on
seven days' prior notice of the inspection having been provided to the
dam owner. Costs for any work which that may be required by the chief
engineer or the authorized representative prior to or as a result of the an
inspection of a dam or other water obstruction required by this act shall
be paid by the owner , governmental agency or operator of such dam or
other water obstruction or by the department as provided for in this act.
(c) All fees collected by the chief engineer pursuant to this section
shall be remitted to the state treasurer as provided in K.S.A. 82a-328,
and amendments thereto.
Sec. 4. K.S.A. 82a-305a is hereby amended to read as follows:
82a-305a. (a) Any person, partnership, association, corporation or
agency or political subdivision of the state government who
intentionally violates any provision of this act or of any rule and
regulation or order issued pursuant thereto shall be deemed guilty of a
class C misdemeanor. Each day that any such violation occurs after
notice of the original violation is served upon the violator by the chief
engineer by restricted mail shall constitute a separate offense.
(b) Upon request of the chief engineer, the attorney general shall
bring suit in the name of the state of Kansas in any court of competent
jurisdiction to enjoin (1) the unlawful construction, modification,
operation or maintenance of any dam or other water obstruction, or (2)
the unlawful change or diminution of the course, current or cross
section of a river or stream. Such court may require the removal or
modification of any such dam or other water obstruction by mandatory
injunction.
(c) In addition to any other penalty provided for by law, any
person who commits a violation of K.S.A. 82a-301 et seq., and
amendments thereto, or any rule and regulation adopted thereunder,
may be subject to a civil penalty of not less than $100 or more than
$1,000 per violation. In the case of a continuing violation, each notice
provided by the chief engineer of such continuing violation and the
required corrective action thereof shall be considered a separate
violation if such corrective action identified in the notice has not
commenced within seven days of receiving such notice. Such civil
penalty may be assessed in addition to any other penalty provided by
law.
(d) No civil penalty shall be imposed pursuant to this section
except on the written order of the chief engineer.
(e) Any person aggrieved by an order of the chief engineer
pursuant to this section may appeal to a district court of competent
jurisdiction in the manner provided by the Kansas judicial review act.
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(f) All moneys collected by the chief engineer pursuant to this
section, except civil penalties collected pursuant to subsection (c), shall
be deposited in the state treasury in accordance with K.S.A. 75-4215,
and amendments thereto, and shall be credited to the water structures
fund pursuant to K.S.A. 82a-328, and amendments thereto.
(g) All moneys collected by the chief engineer pursuant to
subsection (c) shall be deposited in the state treasury in accordance
with K.S.A. 75-4215, and amendments thereto, and shall be credited to
the state general fund.
Sec. 5. K.S.A. 82a-301, 82a-302, 82a-303b and 82a-305a are
hereby repealed.
Sec. 6. This act shall take effect and be in force from and after its
publication in the statute book.
I hereby certify that the above BILL originated in the HOUSE, and was
adopted by that body
HOUSE adopted
Conference Committee Report
Speaker of the House.
Chief Clerk of the House.
Passed the SENATE
as amended
SENATE adopted
Conference Committee Report
President of the Senate.
Secretary of the Senate.
APPROVED
Governor.