Volume 40 - Issue 49 - December 9, 2021
State of Kansas
Department of Agriculture
Division of Water Resources
Permanent Administrative Regulations
Article 19.—LOCAL ENHANCED MANAGEMENT AREAS
5-19-1. Definitions. Each of the following terms, as used in this article of the division’s regulations, shall have the meaning specified in this regulation:
(a) “GMD” means a groundwater management district established pursuant to K.S.A. 82a-1020 et seq., and amendments thereto.
(b) “LEMA” means a local enhanced management area pursuant to K.S.A. 82a-1041, and amendments thereto.
(c) “LEMA plan” means the document adopted by a groundwater management district that specifies the basis for the designation and operation of a local enhanced management area.
(d) “Presiding officer” means either the chief engineer or a hearing officer appointed for the purpose of conducting public hearings regarding a local enhanced management area pursuant to K.S.A. 82a-1041, and amendments thereto. (Authorized by K.S.A. 82a-1041; implementing K.S.A. 74-510a and K.S.A. 82a-1041; effective Dec. 27, 2021.)
5-19-2. LEMA plans. (a) Before a GMD’s board of directors recommends formal approval of a LEMA plan and submission to the chief engineer for review, the GMD’s board of directors or staff may request the division to assist in the development of the LEMA plan or to informally review the LEMA plan.
(b) In addition to the requirements for LEMA plans specified in K.S.A. 82a-1041 and amendments thereto, each GMD that recommends approval of a LEMA plan and formally submits the LEMA plan to the chief engineer shall ensure that the LEMA plan includes the following:
(1) Each condition specified in K.S.A. 82a-1036(a) through (d), and amendments thereto, that the LEMA plan is intended to address;
(2) a statement of each goal that the LEMA plan is intended to achieve;
(3) documentation that quantifies how any corrective controls that establish allocations, cuts, or limitations to water use would affect each individual water right within the proposed boundaries;
(4) an appropriate appeals procedure for water right owners based on the corrective controls implemented;
(5) an executive summary of the proposed goals and corrective controls;
(6) documentation, evidence, or other information indicating that the proposed corrective controls will meet each stated goal of the proposed LEMA plan;
(7) a description of how the boundary of the proposed LEMA was determined;
(8) a description of how due consideration was given to water users who already have implemented reductions in water use resulting in voluntary conservation measures if the corrective controls result in any allocations, reductions, or limitations of water rights that are based on past use. If applicable, the description shall include the following:
(A) An explanation of the criteria or methods used to address voluntary water management or conservation that reduced water usage; and
(B) a requirement that any owner or holder of a water right provide documentation of any voluntary conservation that resulted in the use of less water;
(9) if applicable to the LEMA plan, specification of how past reductions in water use resulting in voluntary conservation will be considered in any appeal process provided; and
(10) if a stated goal of the LEMA plan is to address an impairment or there are known cases of direct impairment within the LEMA, an explanation of how each impairment is legally addressed.
(c) A separate memorandum containing a summary of the public outreach conducted by the GMD before recommending the LEMA plan for approval shall be submitted simultaneously with the LEMA plan and shall include a description of any changes made to the LEMA plan due to any public comments.
(d) If the stated goal of a LEMA plan is to improve water quality, the GMD’s board of directors or staff may consult with the chief engineer before formal submission of the proposed LEMA plan to determine which requirements in subsections (b) and (c) are applicable and to determine any other information necessary in order for the chief engineer to perform a review of the LEMA plan. (Authorized by and implementing K.S.A. 82a-1041; effective Dec. 27, 2021.)
5-19-3. Public hearings. (a) If the chief engineer initiates proceedings to designate a LEMA, the chief engineer may preside over any public hearings or may designate a presiding officer.
(b) If, following the initial hearing, the presiding officer determines that the proposed LEMA plan meets the initial requirements in K.S.A. 82a-1041 and amendments thereto, then a second hearing or hearings on the elements of the proposed LEMA plan shall be held. Each subsequent hearing shall include consideration of the LEMA plan’s corrective controls, the likelihood that the LEMA plan will achieve the stated goals, and any other matters deemed necessary by the presiding officer.
(c) If a presiding officer is appointed to conduct a subsequent hearing as described in subsection (b), the presiding officer for the subsequent hearing shall be authorized only to make recommendations to the chief engineer and shall not have the authority to issue an order of decision or an order of designation.
(d)(1) Before any public hearing, the presiding officer shall hold a prehearing conference, with at least 15 days of notice, to select a date for the public hearing, specify the procedures to be followed at the public hearing, set any deadlines, and consider any other matters necessary for conducting the public hearing. The presiding officer may establish any procedural rules that are deemed necessary or expedient for the conduct of the public hearing, including holding formal and informal phases of testimony, rules for discovery, and cross-examination of witnesses.
(2) Following the prehearing conference, the presiding officer shall issue a prehearing order that specifies the formal parties designated pursuant to paragraph (d)(1) if requested, all procedures to be followed during the public hearing, all deadlines, and any other matters necessary for conducting the public hearing.
(e) If formal and informal phases of testimony are held, the GMD that proposed the LEMA and the division shall be considered formal parties at the public hearing. Each other person or entity that wishes to be designated as a formal party shall file a timely request with the presiding officer. The presiding officer shall have discretion to approve or deny any request based upon the effect that the proposed LEMA would have on that person or entity or the timeliness of the person’s or entity’s request.
(f) Each GMD proposing a LEMA plan shall be required to prove that the LEMA plan meets the requirements of K.S.A. 82a-1041, and amendments thereto, and that the corrective controls are sufficient to meet the stated goals. The GMD’s representative shall call witnesses or testify first, followed by the division, and then by any other formal parties, unless the presiding officer determines that another order of testimony will better facilitate the proceedings. The division may proffer its record along with providing testimony or in lieu of providing testimony.
(g) In all hearings, the presiding officer shall make any rulings regarding procedure and evidence that are necessary to provide all interested persons and entities with a reasonable opportunity to be heard and present evidence into the record, whether the persons or entities are admitted as formal parties or not. The presiding officer shall not be bound by the formal rules of evidence or by any rules of civil procedure. In each case, all testimony received during the hearing or admitted as evidence during the hearing shall be taken under oath or affirmation, and a reasonable opportunity after the hearing shall be provided for the submission of written testimony and comments.
(h) During each hearing for the renewal of a LEMA plan that proposes adoption of a LEMA plan substantially similar to the LEMA plan that was previously adopted, the hearing schedule and requirements may be consolidated and simplified if notice of the consolidation or simplification is provided in the public notice required by K.S.A. 82a-1041 and amendments thereto, the proposing GMD does not object, and all parties are given a reasonable opportunity to be heard.
(i) The GMD and other parties shall not be required to pay any costs related to the presiding officer, hearing location, court reporter, and published notice or any other costs related to hosting a public hearing that may be approved by the chief engineer, except that the GMD may assist in organizing the hearing and may contribute funds to cover part or all of any costs incurred by the division.
(j) The presiding officer may conduct any public hearing by using a medium for interactive communication that meets the requirements of the Kansas open meetings act, K.S.A. 75-4317 et seq. and amendments thereto, if requested or approved by the GMD. The presiding officer may hold any prehearing, scheduling, or other conference by using a medium for interactive communication at the presiding officer’s sole discretion. (Authorized by K.S.A. 82a-706a and K.S.A. 82a-1041; implementing K.S.A. 74-510a and K.S.A. 82a-1041; effective Dec. 27, 2021.)
5-19-4. Due consideration for past voluntary water conservation. (a) Each past reduction in water use that has resulted in voluntary water conservation implemented during any period upon which a LEMA plan’s corrective controls are based shall be given due consideration by the GMD’s board of directors or staff in determining allocations or eligible acres under a LEMA plan if the allocations or eligible acres are based on past use.
(b) If the GMD’s board of directors or staff determines that water use has already been voluntarily reduced through management or conservation practices, the allocation or eligible acres under the LEMA plan or the average used to determine individual allocations and eligible acres may be adjusted based on the amount of water conserved for each year that the conservation measure was in place.
(c) The GMD’s board of directors or staff, in consultation with the chief engineer, may develop or apply any other criteria or methods to determine reductions in water use that resulted in voluntary conservation that are suitable to local conditions under the LEMA plan. (Authorized by and implementing K.S.A. 82a-1041; effective Dec. 27, 2021.)
5-19-5. Review and modification of a designated LEMA. (a) Once a LEMA has been designated by the chief engineer, the corrective controls in the LEMA plan shall remain in place until the LEMA expires pursuant to the terms of the LEMA plan or until the LEMA plan is changed.
(1) A GMD’s board of directors or staff may request assistance in developing changes or informally reviewing any proposed changes to a LEMA plan before recommending adoption of the changes and submitting the changes to the chief engineer for consideration.
(2) In order to change an existing LEMA plan, each proposed change shall first be adopted by resolution of the GMD and then sent to the chief engineer for a public hearing.
(3) If the chief engineer determines that the proposed changes should be made part of the LEMA plan based on the findings at a public hearing, an order amending the LEMA plan shall be issued. However, no amendments may be retroactively applied in a way that requires greater reductions in water use than were required by the existing LEMA plan.
(b) If any proposed changes result from a formal review of the LEMA plan pursuant to K.S.A. 82a-1041 and amendments thereto or as required by the LEMA plan, the proposed changes with the chief engineer’s findings shall be sent to the GMD’s board of directors following the formal review hearing. The GMD’s board of directors shall have 60 days to review the proposed changes and approve, reject, or amend the proposed changes.
(1) If the proposed changes are approved by resolution of the GMD, the chief engineer shall issue a LEMA review order containing the chief engineer’s findings and implementing the changes and amending the LEMA plan.
(2) If the proposed changes are rejected by resolution of the GMD or the GMD fails to act within 60 days, the chief engineer shall issue a LEMA review order summarizing the chief engineer’s findings and recommendations but without ordering any changes or amending the LEMA plan.
(3) If the proposed changes are amended by resolution of the GMD and sent back to the chief engineer, an additional public hearing to consider the amendments shall be held. The additional hearing shall allow for the submission of written comments and may be conducted by using a medium for interactive communication that meets the requirements of the Kansas open meetings act, K.S.A. 75-4317 et seq. and amendments thereto. The amendments to the proposed changes shall not be amended by the chief engineer but may only be adopted or rejected as received from the GMD. Following the public hearing on the amendment, the chief engineer shall issue an order with findings that either reject the changes or order the amendment of the LEMA plan.
(c) Each hearing to consider changes in a designated LEMA and each formal review hearing shall be conducted pursuant to the hearing requirements in K.A.R. 5-19-3, unless the existing LEMA plan prescribes different or additional procedural requirements for a formal review.
(d) In addition to any topics required by the LEMA plan to be reviewed, each LEMA plan formal review hearing shall, at a minimum, include review and consideration of the effectiveness of the current corrective controls to meet the LEMA plan’s stated goal. This subsection shall not serve as a limitation on topics that the presiding officer may hear or that the public may present during a formal review. (Authorized by K.S.A. 82a-706a and K.S.A. 82a-1041; implementing K.S.A. 82a-1041; effective Dec. 27, 2021.)
Earl D. Lewis, P.E.
Chief Engineer
Doc. No. 049623
