Session of 1999
         
HOUSE BILL No. 2251
         
By Committee on Environment
          
2-4
          
  9             AN  ACT supplementing the Kansas water appropriation act; concerning
10             appropriation of water for sand and gravel projects; repealing K.S.A.
11             82a-734.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. As used in this act, unless the context indicates otherwise:
15             (a) "Acceptable quality surface water" means surface water that will
16       not degrade the quality of the groundwater source into which it is
17       discharged.
18             (b) "Operator" means any person who engages in mining sand or
19       gravel, or both.
20             (c) "Permit" means a permit to appropriate water pursuant to the
21       Kansas water appropriation act (K.S.A. 82a-701 et seq. and amendments
22       thereto).
23             (d) "Project application" means an application filed with the chief
24       engineer to construct a sand and gravel project.
25             (e) "Project permit" means a permit issued by the chief engineer
26       authorizing construction and operation of a sand and gravel project until
27       the exhaustion of proven reserves or closure in according with the surface-
28       mining land conservation and reclamation act (K.S.A. 49-601 et seq. and
29       amendments thereto).
30             (f) "Proven reserves" means extractable sand and gravel deposits for
31       which good estimates of the quantity and quality have been made by
32       various means, such as core drilling.
33             (g) "Sand and gravel project" or "project" means a project that: (1)
34       Excavates overburden for mining sand or gravel, or both, exposing the
35       underlying groundwater table to evaporation; and (2) has a perimeter
36       equal to or greater than its depth.
37             (h) "Unconsolidated regional aquifer" means a body of mostly un-
38       consolidated and heterogeneous water-bearing deposits that are hydrau-
39       lically and geographically contiguous and are capable of yielding water in
40       sufficient quantities for beneficial use.
41             (i) "Stream channel aquifer" means unconsolidated water-bearing
42       deposits in river valleys, flood plains and terraces that are separate and
43       distinct from any other aquifer and capable of yielding water in sufficient

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  1       quantities for beneficial use.
  2             Sec.  2. A permit for a project that will expose and cause evaporation
  3       from the groundwater table shall include authorization of:
  4             (a) The net average annual groundwater evaporation;
  5             (b) all nonconsumptive uses of water at the project site, including
  6       hydraulic dredging; and
  7             (c) all consumptive uses of water in the project.
  8             Sec.  3. In determining whether to issue a permit for a project that
  9       will expose and cause evaporation from the groundwater table:
10             (a) The chief engineer shall determine the annual groundwater ap-
11       propriation to be permitted based on: (1) Net average annual ground-
12       water evaporation values in effect on July 1, 1997, or revised values taking
13       into account any relevant scientific evaporation data related to projects in
14       the state of Kansas; multiplied by (2) the water surface area of the pro-
15       posed project expressed in acres. The rate of diversion shall be considered
16       to be the natural rate of evaporation.
17             (b) The chief engineer shall expeditiously approve any application for
18       a permit if the operator demonstrates that the net average annual evap-
19       oration for the project is accounted for or offset in one or more of the
20       following ways:
21             (1) The amount of net annual groundwater evaporation is currently
22       permitted pursuant to the Kansas water appropriation act;
23             (2) water as may be available for appropriation pursuant to the Kansas
24       water appropriation act, the perfection period for which shall extend
25       through the life of the project;
26             (3) the net annual groundwater evaporation is authorized to be per-
27       mitted pursuant to the provisions of the Kansas water appropriation act;
28             (4) acceptable quality surface water, which is legally and physically
29       available for groundwater recharge, is authorized to be diverted into the
30       proposed project;
31             (5) water rights have been acquired and the point of diversion, place
32       of use and type of use are changed to allow existing water rights to be
33       used for the project;
34             (6)  (A) water is made available by acquiring all, or a portion of, an
35       existing water right to: (i) Use surface water or groundwater, or both,
36       hydraulically connected to the stream channel aquifer in which the pro-
37       ject is located; (ii) use groundwater from an unconsolidated regional aq-
38       uifer that is within a two-mile radius of the geo-center of the project and
39       is the same unconsolidated regional aquifer in which the project is lo-
40       cated, or a hydraulically connected aquifer; or (iii) use groundwater from
41       an unconsolidated regional aquifer that is within a 3.5-mile radius of the
42       geo-center of the project and is the same unconsolidated regional aquifer
43       in which the project is located, or a hydraulically connected aquifer, if

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  1       the operator can demonstrate to the satisfaction of the chief engineer that
  2       sufficient water rights to offset the evaporation caused by the project
  3       cannot be acquired within a two-mile radius of the geo-center of the
  4       project after making reasonable and prudent efforts to find both proven
  5       reserves and water rights; and
  6             (B) the appliant demonstrates to the satisfaction of the chief engineer
  7       that the acquired water right or a portion thereof will no longer be ex-
  8       ercised by: (i) Placing it in the custodial care of the state; (ii)placing it in
  9       a perpetual trust approved by the chief engineer; or (iii) restricting its
10       future use in some other way that the chief engineer determines to be
11       satisfactory to accomplish the purposes of this section;
12             (7) diffused surface water is diverted into the project from inside a
13       berm surrounding the project built to prevent unacceptable quality sur-
14       face water from entering the groundwater table, in which case the average
15       annual amount of runoff shall be determined in accordance with stan-
16       dards established by the chief engineer; or
17             (8) and any other water credit or offset acceptable to the chief
18       engineer.
19             (c) With respect to an offset water right described in subsection
20       (b)(6):
21             (1) No physical diversion of the offset water right shall be required
22       or allowed; and
23             (2) the project shall receive credit for 100% of the net consumptive
24       use of the acquired water right.
25             (d) The chief engineer shall adopt rules and regulations establishing
26       criteria for determining the offset credit that shall be allowed pursuant
27       to subsection (b)(6).
28             (e) Proof that any necessary easements or covenants attached to or
29       running with the land to provide offsets will continue to be available.
30             (f) The chief engineer may approve a permit for a project subject to
31       such terms, conditions and limitations as necessary to protect the public
32       interest.
33             Sec.  4. (a) An application for a permit to appropriate water for evap-
34       oration of groundwater caused by a project shall be exempt from meeting
35       the safe yield, allowable appropriation or similar criteria if the applicant
36       demonstrates that all of the following are met on the effective date of
37       this act:
38             (1) The operator had an active existing sand and gravel mining op-
39       eration as of December 31, 1997;
40             (2) the operator has a valid surface mining license issued pursuant to
41       the surface-mining land conservation and reclamation act;
42             (3) if required, the operator has a valid hydraulic dredging permit
43       issued pursuant to the Kansas water appropriation act;

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  1             (4) the operator has filed all water use reports required by K.S.A.
  2       82a-732 and amendments thereto;
  3             (5) the operator has paid all water protection fees required by K.S.A.
  4       82a-954 and amendments thereto;
  5             (6) the operator had purchased, leased or otherwise acquired legal
  6       control over the proven sand and gravel reserved for the existing project
  7       or a reasonable expansion of the proposed project by February 15, 1999,
  8       or such later date as the chief engineer may approve for good cause based
  9       on clear and convincing evidence;
10             (7) in the past the operator has provided notice to the chief engineer
11       when required by subsection (a) of K.S.A. 82a-734, as it existed prior to
12       the effective date of this act; and
13             (8) the operator has applied for all local permits and local zoning
14       approvals, which must be acquired by December 31, 2000.
15             (b) It shall be the burden of the operator to show that the operator
16       meets the requirements of this section by filing the necessary information
17       and documentation with the chief engineer on or before December 31,
18       2000. Extensions may be granted by the chief engineer, provided that
19       any requests for such extensions are filed on or before December 31,
20       2000.
21             Sec.  5. An application for a project shall be made on forms provided
22       by the chief engineer. The forms shall require the following:
23             (a) The legal description and a map of the land located within one
24       mile of the proposed project boundary;
25             (b) the date the project began, or will begin;
26             (c) the total net acres of the groundwater table that will be exposed
27       by the project at the time active mining ceases and a legal description
28       and a map showing the location of the completed excavation;
29             (d) the total net average annual groundwater evaporation that will
30       have been caused by the project at the time active mining ceases;
31             (e) the entire net amount of groundwater evaporation which needs
32       to be offset at the time that active mining ceases;
33             (f) the natural and artificial drainage patterns of surface water into
34       the project during active mining and at the time active mining will cease;
35             (g) the water rights, permits and evaporation offsets that will fully
36       permit or replace the net average annual groundwater evaporation at the
37       time that active mining ceases; and
38             (h) such other pertinent information as required by the chief
39       engineer.
40             Sec.  6. (a) In addition to the reporting requirements of K.S.A. 82a-
41       732 and amendments thereto, the owner shall also report pursuant to
42       K.S.A. 82a-732 and amendments thereto: (1) The areal extent of the ex-
43       posed ground water table on December 31 of the preceding calendar

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  1       year; (2) that sufficient offsets to the evaporation are actually in place
  2       pursuant to the project permit to replace the net annual evaporation from
  3       the surface area of the groundwater exposed as of December 31 of the
  4       previous calendar year; and (3) the specific offsets that are in place.
  5             (b) The chief engineer shall report net evaporation from sand and
  6       gravel operations as an industrial use to the director of taxation for the
  7       purpose of assessing the water protection fee pursuant to K.S.A. 82a-954
  8       and amendments thereto.
  9             (c) At the time active mining ceases, the applicant shall have in place
10       offsets sufficient to replace the average annual net evaporation from the
11       groundwater table.
12             Sec.  7. Once a project is permitted, the project shall not be subject
13       to regulation by the chief engineer for impairment unless it is necessary
14       to protect the public health, safety or welfare.
15             Sec.  8. Any application for a project permit shall be accompanied by
16       a filing fee of $500 and any request for modification shall be accompanied
17       by a fee of $250. Such fees shall cover all permits issued pursuant to the
18       project permit, and are in lieu of any fees which might be required pur-
19       suant to K.S.A. 82a-708a and 82a-708b, and amendments thereto.
20             Sec.  9. (a) If an operator desires to modify or expand a project, the
21       operator shall apply for a modification to, and receive the written approval
22       of, the chief engineer prior to modifying or expanding the project.
23             (b) If a project is terminated prior to full completion, the special
24       project permit may be modified accordingly and an application for change
25       for the unused portion of any water rights used for offset may be filed
26       pursuant to K.S.A. 82-708b and amendments thereto.
27             Sec.  10. The provisions of this act shall be part of and supplemental
28       to the Kansas water appropriation act. 
29       Sec.  11. K.S.A. 82a-734 is hereby repealed.
30        Sec.  12. This act shall take effect and be in force from and after its
31       publication in the statute book.