February 3, 1993

ATTORNEY GENERAL OPINION NO. 93- 15

Jeffery A. Mason

Counsel for Northwest Kansas Groundwater

Management District #4

214 E. 10th Street, Box 767

Goodland, Kansas 67735

Re:	Waters and Watercourses--Groundwater Management Districts--Initiation of Proceedings for Designation of Intensive Groundwater Use Control Areas; Duties of Chief Engineer; Findings; District Powers; Home Office

Synopsis:	The chief engineer of the division of water resources of the Kansas state board of agriculture is authorized to initiate proceedings to designate an intensive groundwater use control area under K.S.A. 1992 Supp. 82a-1038. Such a conservation plan cannot be effected by the promulgation of rules and regulations. Cited herein: K.S.A. 1992 Supp. 82a-733; K.S.A. 82a-1036; K.S.A. 1992 Supp. 82a-1038.

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Dear Mr. Mason:

As counsel for the northwest Kansas groundwater management district no. 4 (hereinafter GMD#4) you inquire whether in light of Attorney General Opinion No. 92-97 the chief engineer of the Kansas state board of agriculture can implement a conservation plan resembling a groundwater use control area through rules and regulations and without the use of K.S.A. 1992 Supp. 82a-1038. The conservation plan in question is similar to that discussed in Attorney General Opinion No. 92-97 (attached).

In this opinion we concluded that a ground water management district (GMD) is not authorized to implement a conservation plan that resembles an intensive groundwater use control area (IGUCA) without action by the chief engineer as required by K.S.A. 82a-1036. Both this statute and K.S.A. 1992 Supp. 82a-1038 deal with the initiation of extraordinary corrective measures that are necessary for the conservation of groundwater resources and are effected by order of the chief engineer. Unlike a general conservation plan approved by the chief engineer under K.S.A. 1992 Supp. 82a-733, an intensive groundwater use control area designation requires the chief engineer use specific authority provided in K.S.A. 82a-1036 and K.S.A. 1992 Supp. 82a-1038. In our judgment the chief engineer cannot implement such a conversation plan by promulgating rules and regulations.

Your second and third questions are premised on an affirmative answer to your first question and therefore we need not address them at this time.

Very truly yours,

ROBERT T. STEPHAN

Attorney General of Kansas

Guen Easley

Assistant Attorney General

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