A safety berm shall not be deemed a levee or any other such improvement subject to regulation pursuant to K.S.A. 24-126, and amendments thereto, if the safety berm meets one of the conditions in subsection (a) and all of the requirements in subsection (b). (a)(1) The safety berm is a guardrail that would not divert, restrict, or raise the floodwaters of a stream.

1. (2) The safety berm is at least six inches below the base flood elevation.

2. (3) The safety berm will contain gaps from the ground surface to the top of the berm spaced at intervals of 100 feet or less. The gaps shall be sufficiently wide to allow floodwaters to breach the safety berm.

   1. (b) The safety berm meets the following requirements:
3. (1) Does not obstruct normal streamflow;
4. (2) does not redirect normal streamflow;
5. (3) does not block culverts and drainage channels; and
6. (4) does not cause other hydraulic problems, including causing an unreasonable effect.

(Authorized by and implementing K.S.A. 2007 Supp. 24-126; effective Oct. 3, 2008.)