Kansas water regulators propose streamlined impairment rules, clarify multi‑year allocations amid data‑center concerns

The Kansas Department of Agriculture’s Division of Water Resources proposed sweeping changes to groundwater impairment and LEMA regulations, seeking to shorten investigations and better reflect multiyear allocation law while drawing questions from lawmakers about large new water users such as proposed AI data centers.

The changes, presented by Earl Lewis, chief engineer and director at the Kansas Department of Agriculture’s Division of Water Resources, would revoke two existing impairment regulations (KAR 5-41 and 5-41a) and replace them with a single streamlined section (referred to in testimony as 5-41b). Lewis told the Joint Committee on Administrative Rules and Regulations that the new language reduces procedural burdens on senior water-right holders and shortens the investigative process the statute already requires.

Lewis said the division’s goal is to “make sure the people that have the access or the rights to the water first get the water they’re entitled to.” He explained the changes are focused on groundwater investigations, which he described as more complex than surface-water cases because impacts are harder to observe.

Under the proposed approach, a person who believes they are being impaired would notify a field office or headquarters; the division would then identify junior rights in the area, notify those junior rights holders, collect information, and, if impairment is found, take action. Lewis said the division removed a regulatory requirement that multiple steps be routed to local groundwater management districts (GMDs) for recommendations, citing time delays and an intent to reduce political influence: “we want to try and keep as much politics out of these water rights decisions.”

Lewis also said the revision removes a regulatory carve‑out that had treated regional lowering of the aquifer as a non‑impairment; the division concluded that the statute requires investigation to identify specific rights causing impairment, so a regional decline that does not point to individual causes is already addressed by statute.

The division separately described proposed updates to regulations for local enhanced management areas (LEMAs) and similar multiyear allocation tools to reflect a statutory change that allows multiyear (for example, five‑year) allocations. Lewis illustrated the regulatory issue with a hypothetical: a water right with an authorized annual quantity of 100 acre‑feet could be given a five‑year allocation that permits 300 acre‑feet total over five years, instead of 5×100 = 500 acre‑feet. The proposed regulation clarifies that an authorized annual quantity still matters for compliance and enforcement, and would allow flexibility so users do not violate their single‑year limits while remaining under a multiyear cap.

The division also proposed prohibiting use of individual historic seasonal pumping intended only to inflate future allocations. Lewis told the committee he had seen users pump in offseason months to increase “historic water use” records: “We want to say that we think that’s a waste of water. That’s not a good use.” He described a separate statutory requirement that the chief engineer give “due consideration for past conservation,” and said the regulation aims not to reward wasteful behavior when allocations are set.

Lawmakers pressed the division on practical impacts. Representative Corbett asked whether a permit immediately allows pumping; Lewis replied that “if he’s got a permit from us, then he has permission to pump … as long as he does so by the condition of the permit.” Senator Mike Thompson asked whether the changes could affect rights on the Kansas River or large industrial users. Lewis said the prior appropriation system applies to both surface and groundwater and that the rules “could apply if we get into an impairment situation on the Kansas River,” though he called the likelihood of such a severe regional impairment “pretty remote.”

Thompson raised a specific concern about a proposed AI data center in DeSoto that reportedly could use “5, 6000000 gallons per day” (as stated in committee remarks). Lewis said the division had not been contacted by the project but had heard reports and that large new users often obtain water through existing public wholesale suppliers that hold water rights: “If somebody new came in that didn’t have water rights, they would have to apply for a new permit … we would look at the source of supply and make sure that it’s adequate to meet their needs during the full range of conditions, including drought.”

Committee members asked for follow‑up information on several points raised in testimony, including statutory references and details about how the division will coordinate with GMDs and implement the changes.

Lewis emphasized the division’s statutory duties and property‑rights framing, noting statutes cited during testimony (KSA 82a‑706b and KSA 82a‑717a) as governing impairment investigations. He said the division reduced three pages of regulation to one, reflecting that the statute already defines the investigative and remedial duties.

The committee did not take a vote on the regulations during the session; members asked for additional written materials and follow‑up answers on specific questions.

Ending: The division said it will provide requested clarifications to the committee. Lawmakers signaled interest in tracking impacts if large new users such as data centers move forward and in ensuring GMD coordination and statutory alignment.