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SENATE BILL No. 58
AN A CT concerning water; relating to multi-year flex accounts; modifying the
requirements for and authorized allocations from such accounts; amending K.S.A.
2024 Supp. 82a-736 and repealing the existing section.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 2024 Supp. 82a-736 is hereby amended to read
as follows: 82a-736. (a) It is hereby recognized that an opportunity
exists The chief engineer is authorized to establish multi-year flex
accounts to improve water management by enabling multi-year
flexibility in the use of water authorized to be diverted under a
groundwater water right, provided that if such flexibility neither
impairs existing water rights , nor increases the total amount of water
diverted, so that such flexibility has no long-term negative effect on the
source of supply. It is therefore declared necessary and advisable to
permit the establishment of multi-year flex accounts for groundwater
water rights, together with commensurate protections for existing water
rights and their source of supply.
(b) As used in this section:
(1) "Alternative base average usage" means an allocation based on
net irrigation requirements calculated pursuant to subsection (c)(1)(D)
(ii) that may be used in place of the base average usage.
(2) "Base water right" means a water right under which an
applicant applies to the chief engineer to establish a multi-year flex
account and where all of the following conditions exist that is vested or
has been issued a certificate of appropriation and:
(A) The water right's authorized source of supply is groundwater;
and
(B) the water right is not currently the subject of to a multi-year
allocation due to a change approval that allows an expansion of the
authorized place of use pursuant to any other program or order issued
by the chief engineer;
(C) the water right is not subject to any order issued by the chief
engineer pursuant to K.S.A. 82a-703a, 82a-706b or 82a-717a, and
amendments thereto;
(D) neither the water right nor any portion thereof has been
deposited or placed in a safe deposit account in a chartered water
bank;
(E) the water right is not deemed abandoned and is in compliance
with all provisions of any order of the chief engineer; and
(F) the chief engineer determines that no other conditions exist
that make establishment of a multi-year flex account for such water
right contrary to the public interest.
(3)(2) "Multi-year flex account" means a term permit for up to
five years that suspends a base water right during its term, except when
the term permit may be no longer exercised because of an order of the
chief engineer, and is subject to the terms and conditions as provided in
subsection (e).
(4) "Base average usage" means:
(A) The average amount of water actually diverted for the
authorized beneficial use under the base water right during calendar
years 2000 through 2009, excluding:
(i) Any amount diverted in any such year that exceeded the
amount authorized by the base water right;
(ii) any amount applied to an unauthorized place of use; and
(iii) diversions in calendar years when water was diverted under a
multi-year allocation with an expansion of the authorized place of use
due to a change approval;
(B) if water use records are inadequate to accurately determine
actual water use or upon demonstration of good cause by the applicant,
the chief engineer may calculate the base average usage with less than
SENATE BILL No. 58—page 2
all 10 calendar years during 2000 and 2009. In no case shall the base
average usage be calculated with less than five calendar years during
2000 and 2009; or
(C) if the holder of the base water right shows to the satisfaction
of the chief engineer that water conservation reduced water use under
the base water right during calendar years 2000 through 2009, then the
base average usage shall be calculated with the five calendar years
immediately before the calendar year when water conservation began.
(5) "Chief engineer" means the chief engineer of the division of
water resources of the department of agriculture.
(6) "Flex account acreage" means the maximum number of acres
lawfully irrigated during a calendar year, except for any acres irrigated
under a multi-year allocation that allowed for an expansion of the
authorized place of use due to a change approval and any of the
following conditions are met:
(A) The calendar year is 2000 through 2009;
(B) if water conservation reduced water use under the base water
right during calendar years 2000 through 2009, the calendar year is a
year within the five calendar years immediately prior to the calendar
year when water conservation began; or
(C) if an application to appropriate water was approved after
December 31, 2004, the calendar year is any during the perfection
periodand assigns a multi-year quantity allocation to such base water
right in place of the base water right's annual quantity limitation for
the duration of the term permit.
(7)(3) "Net irrigation requirement" means the net irrigation
requirement for 50% chance rainfall of the county that corresponds
with the location of the authorized place of use of the base water right
as provided in K.A.R. 5-5-12, on the effective date of this act.
(c) (1) Except as provided in K.S.A. 2024 Supp. 82a-774 and
section 1 of chapter 76 of the 2023 Session Laws of Kansas, and
amendments thereto, any holder of a base water right that has not been
deposited or placed in a safe deposit account in a chartered water
bankAny holder of a base water right may establish a multi-year flex
account where the holder may deposit, in advance, the authorized
quantity of water from such a base water right for any in advance for a
period of up to five consecutive calendar years, except when the chief
engineer determines a shorter period is necessary for compliance with a
local enhanced management area or an intensive groundwater use
control area and the corrective controls in the area do not prohibit the
use of multi-year flex accounts, and subject to all of the following:
(A) The water right must be vested or shall have been issued a
certificate of appropriation;
(B) the withdrawal of water pursuant to the water right shall be
properly and adequately metered;
(C) the water right is not deemed abandoned and is in compliance
with the terms and conditions of its certificate of appropriation, all
applicable provisions of law and orders of the chief engineer;
(D). Each multi-year flex account shall meet the following
requirements:
(1) The amount of water deposited in the multi-year flex account
shall not exceed the greatest of the following:
(i) 500% of the base average usage;
(ii) 500% of the product of the annual net irrigation requirement
multiplied by the flex account base water right's authorized acreage,
multiplied by 110%, but and such amount shall not greater than exceed
five times the maximum annual quantity authorized by the base water
right;
(iii) if the authorized place of use is located wholly within the
SENATE BILL No. 58—page 3
boundaries of a groundwater management district, an amount that shall
not increase the long-term average use of the groundwater right as
specified by rule or regulation promulgated pursuant to K.S.A. 82a-
1028(o), and amendments thereto; or
(iv) pursuant to subparagraph (F), the amount computed in (i), (ii)
or (iii) plus any deposited water remaining in a multi-year flex account
up to 100% of the base average usage or alternative base average
usage;
(E) if the multi-year flex account is approved for less than five
calendar years, the amount of water deposited in the multi-year flex
account shall be prorated based on the number of calendar years
approved and otherwise calculated as required by subsection (c)(1)(D)
(i), (ii) or (iii); and
(F) any deposited water remaining in a multi-year flex account up
to 100% of the base average usage or alternative base average usage
may be added to the deposit amount calculated in subparagraph (D) if
the base water right is enrolled in another multi-year flex account
during the calendar year in which the existing multi-year flex account
expires. The total amount of water deposited in any multi-year flex
account shall not exceed 500% of the authorized quantity of the base
water right.
(2) The provisions of K.A.R. 5-5-11 are limited to changes in
annual authorized quantity and shall not apply to this subsection.
(d) The chief engineer shall implement a program providing for
the issuance of term permits to holders of groundwater water rights
who have established flex accounts in accordance with this section.
Such term permits shall authorize the use of water in a flex account at
any time during the consecutive calendar years for which the
application for the term permit authorizing a multi-year flex account is
made, without annual limits on such use.
(e) Term permits provided for by this section shall be subject to
the following:
(1) A separate term permit shall be required for each point of
diversion authorized by the base water right.
(2) The quantity of water authorized for diversion shall be limited
to the amount deposited pursuant to subsection (c)(1)(D).
(3) The rate of diversion for each point of diversion authorized
under the term permit shall not exceed the rate of diversion for each
point of diversion authorized under the base water right.
(4) The authorized place of use shall be the place of use or a
subdivision of the place of use for the base water right. Any approval of
an application to change the place of use of the base water right shall
automatically result in a change to the place of use for the term permit.
(5) The point of diversion authorized by the term permit shall be
specified by referencing one point of diversion authorized by the base
water right at the time the multi-year flex account term permit
application is filed with the chief engineer or at the time any approvals
changing such referenced point of diversion of the base water right are
approved during the multi-year flex account period. For a base water
right with multiple points of diversion, each point of diversion
authorized by a term permit shall receive a specific assignment of a
maximum authorized quantity of water, assigned proportionately to the
authorized annual quantities of the respective points of diversion under
the base water right.
(6) The chief engineer may establish, by rules and regulations,
criteria for such term permits.
(7) Except as explicitly provided for by this section, such term
permits shall be subject to all provisions of the Kansas water
appropriation act, and rules and regulations adopted under such act, and
SENATE BILL No. 58—page 4
nothing in this section shall authorize impairment of any vested right or
prior appropriation right by the exercise of such term permit.
(f) An(2) for each multi-year flex account that overlaps in place
of use with other water rights, including other multi-year flex accounts
or other term permits, the multi-year flex account's authorized quantity
shall be further limited by the net irrigation requirement for the
common place of use when combined with the quantities authorized by
the overlapping water rights or term permits;
(3) a separate multi-year flex account application shall be
required for each point of diversion authorized by the base water right;
(4) the authorized rate of diversion of each multi-year flex
account shall be the maximum authorized rate of diversion for the
point of diversion authorized by the base water right; and
(5) the authorized point of diversion and place of use shall be the
point of diversion and place of use for the base water right. Any
approval of an application to change the point of diversion or place of
use of the base water right shall automatically result in a change to the
point of diversion or place of use for the multi-year flex account.
(d) Each application for a multi-year flex account shall be filed
with the chief engineer on or before December 31 of the first year of
the multi- year flex account term for which the application is being
made. Such application shall be subject to the same fee required for
other term permits pursuant to K.S.A. 82a-708c, and amendments
thereto.
(e) If there is deposited water remaining in a multi-year flex
account upon the expiration of such account's term, an amount of
water not to exceed the lesser of the annual net irrigation requirement
for the base water right's authorized acres or the base water right's
authorized annual quantity may be added to the deposit amount
determined in paragraph (c) (1) for a subsequent multi-year flex
account term if such addition does not result in the multi-year
allocation for the subsequent multi-year flex account term exceeding
the base water right's authorized annual quantity multiplied by the
number of years of the subsequent multi-year flex account term and the
base water right is enrolled in the subsequent multi- year flex account
during the calendar year in which the existing multi- year flex account
term expires.
(f) Except as otherwise provided in this section, multi-year flex
accounts shall be subject to all provisions of the Kansas water
appropriation act and any rules and regulations adopted thereunder.
(g) All costs of administration of this section shall be paid from
fees for term permits provided for by this section the water
appropriation certification fund when moneys are available in such
fund. Any appropriation or transfer from any fund other than the water
appropriation certification fund for the purpose of paying such costs
shall be repaid to the fund from where such appropriation or transfer is
made. At the time of repayment, the secretary of agriculture shall
certify to the director of accounts and reports the amount to be repaid
and the fund to be repaid. Upon receipt of such certification, the
director of accounts and reports shall promptly transfer the amount
certified to the specified fund.
(h) The fee for a multi-year flex account term permit shall be the
same as specified for other term permits in K.S.A. 82a-708c, and
amendments thereto.
(i) The chief engineer shall have full authority pursuant to K.S.A.
82a-706c, and amendments thereto, to require any additional measuring
devices and any additional reporting of water use for term permits
issued pursuant to this section. Failure to comply with any measuring
or reporting requirement may result in a penalty, up to and including
SENATE BILL No. 58—page 5
the revocation of the term permit and the suspension of the base water
right for the duration of the term permit period may adopt rules and
regulations to implement, administer and enforce this section.
(j)(i) The chief engineer shall submit a written report on the
implementation of this section to the house standing committee
committees on agriculture and natural resources and water and the
senate standing committee on agriculture and natural resources or any
successor committees on or before February 1 of each year January 15,
2029, and every four years thereafter.
(k)(j) This section shall be a part of and supplemental to the
Kansas water appropriation act.
Sec. 2. K.S.A. 2024 Supp. 82a-736 is hereby repealed.
Sec. 3. 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
SENATE, and passed that body
_________________________
_________________________
President of the Senate.
_________________________
Secretary of the Senate.
Passed the HOUSE ________________________
_________________________
Speaker of the House.
_________________________
Chief Clerk of the House.
APPROVED ____________________________
_________________________
Governor.