1. (a) An annual minimum desirable streamflow (MDS) consent order according to K.A.R. 5-15-1(c)(1) may be entered into by the chief engineer and the owner of the water right or approval of application to divert surface water. This consent order shall contain the following provisions:

   1. (1) Whenever the chief engineer has determined that the administration of water rights and approvals of applications to divert surface water with a priority after April 12, 1984 is necessary to protect the minimum desirable streamflow set by K.S.A. 82a-703c, and amendments thereto, water shall not be diverted under the authority of these water rights or approval of applications unless the owner has been notified by the chief engineer by certified mail, personal notice, or other verifiable means that either of the following conditions has been met:

      (A)(i) The chief engineer has determined that the average daily streamflow has been, or is likely to be, at or above the temporary surface water diversion threshold for a period of time specified in K.A.R. 5-15-4 or set by the chief engineer according to K.A.R. 5-15-1(d); and

      1. (ii) the chief engineer has determined that water is available to be diverted during that time period under the priority of water rights or approval of applications with a priority after April 12, 1984 without impairing senior water rights or senior water reservation rights.

         1. (B) The chief engineer has determined that it is no longer necessary to administer water rights and approval of applications to protect the minimum desirable streamflow set by K.S.A. 82a-703c, and amendments thereto.
   2. (2) The owner of the water right or approval of application shall properly install and maintain a water flowmeter on all points of diversion authorized by the water rights or approval of applications in accordance with regulations adopted by the chief engineer.

   3. (3) The water right owner agrees that failure to abide by either of the following will result in the suspension of the water right or approval of application pursuant to K.S.A. 82a-737, and amendments thereto, for the remainder of the calendar year, and any other enforcement actions that may be authorized by law:

      1. (A) The terms of the MDS consent order; or
      2. (B) the terms, conditions, and limitations of the water right or approval of application.
   4. (4) The water right owner agrees to comply with any other provisions that the chief engineer determines are necessary to prevent impairment, protect MDS values, and protect the public interest.

2. (b) If the chief engineer determines that hydrologic conditions indicate that some groundwater will be available to be pumped in the basin during the next water-use season or year by water rights or approval of applications with a priority after April 12, 1984, the owner of the water right or approval of application may enter into an annual MDS consent order pursuant to K.A.R. 5-15-1(c)(1) to divert groundwater, upon approval of the chief engineer. This consent order shall contain the following provisions:

   1. (1) Whenever the chief engineer has determined that the administration of water rights and approval of applications to divert groundwater with a priority after April 12, 1984 is necessary to protect minimum desirable streamflows set by K.S.A. 82a-703c, and amendments thereto, groundwater shall not be diverted under the authority of the water right or approval of application unless the owner has been notified by the chief engineer by certified mail, personal notice, or other verifiable means that one of the following conditions has been met:

      1. (A) During MDS administration during that calendar year, the owner is authorized to divert, pursuant to the owner's water right or approval of application, a quantity of water not to exceed that quantity of water set forth in K.A.R. 5-15-4 as the well pumping allowance.
      2. (B) The chief engineer has determined that it is no longer necessary to administer water rights and approvals of applications to protect the minimum desirable streamflows set by K.S.A. 82a-703c, and amendments thereto.
   2. (2) The owner of the water right or approval of application shall properly install and maintain a water flowmeter on all points of diversion authorized by the water right or approval of application in accordance with regulations adopted by the chief engineer.
   3. (3) The total quantity of water authorized to be diverted under the water right or approval of application during a calendar year shall not exceed the annual quantity of water authorized.

   4. (4) The water right owner agrees that failure to abide by either of the following will result in the suspension of the water right or approval of application for the remainder of the calendar year, and any other enforcement actions that may be authorized by law:

      1. (A) The terms of the MDS consent order; or
      2. (B) the terms, conditions, and limitations of the water right or approval of application.
   5. (5) The water right owner agrees to comply with any other provisions that the chief engineer determines are necessary to prevent impairment, protect MDS values, and protect the public interest.

This regulation shall be effective on and after August 27, 2002.

(Authorized by K.S.A. 82a-706a; implementing K.S.A. 82a-703a, 82a-703b, and 82a-703c, and K.S.A. 2001 Supp. 82a-737; effective, T-5-4-29-02, April 29, 2002; effective Aug. 27, 2002.)