Kansas Attorney General Opinion 2018-009

August 9, 2018
ATTORNEY GENERAL OPINION NO. 2018- 9
Jackie McClaskey, Secretary
Kansas Department of Agriculture
1320 Research Park Drive
Manhattan, KS 66502
Re: 	Waters and Watercourses—Groundwater Management Districts—Local
Enhanced Management Areas; Establishment Procedures; Duties of Chief
Engineer
Synopsis: 	Kansas law does not require any additional procedural steps to be taken
when the Chief Engineer of the Division of Water Resources retires or
resigns 	from 	that 	position 	during 	proceedings 	to 	designate 	a 	local
enhanced management area. Cited herein: K.S.A. 2017 Supp. 82a-1021;
82a-1036; 82a-1041.
* 	* 	*
Dear Secretary McClaskey:
As Secretary of the Kansas Department of Agriculture, you ask our opinion on what, if
any, additional procedures would be required in the event the Chief Engineer of the
Division 	of 	Water 	Resources 	retired 	or 	resigned 	during 	the 	following 	stages 	of
proceedings to designate a local enhanced management area (LEMA):
1) After LEMA proceedings have been initiated, but prior to holding an initial public
hearing;
2) After holding the initial public hearing but prior to issuing findings related to that
hearing;
3) After issuing the initial findings but prior to holding the second hearing; and,

Secretary Jackie McClaskey
Page 2
4) After holding the second public hearing but prior to issuing an order of decision.
For the reasons described below, we do not believe any additional steps or procedures
are required in the event the Chief Engineer retires or resigns at any point during LEMA
designation proceedings.
We begin our analysis by summarizing the procedure for designating a LEMA, as
prescribed 	by 	K.S.A. 	2017 	Supp. 	82a-1041. 	The 	proceedings 	begin 	when 	a
groundwater management district 1 recommends the approval of a local enhanced
management plan to address certain groundwater conditions. 2 The district submits its
plan to the Chief Engineer, who conducts a review of the plan. K.S.A. 2017 Supp. 82a-
1041(a) limits the chief engineer’s review to whether the plan:
(1) Proposes clear geographic boundaries;
(2) pertains to an area wholly within the groundwater management
district;
(3) proposes goals and corrective control provisions as provided in
[K.S.A. 2017 Supp. 82a-1041(a)] adequate to meet the stated
goals;
(4) 	gives 	due 	consideration 	to 	water 	users 	who 	already 	have
implemented 	reductions 	in 	water 	use 	resulting 	in 	voluntary
conservation measures;
(5) includes a compliance monitoring and enforcement element; and
(6) is consistent with state law.
If, based upon that limited review, the Chief Engineer determines that the plan is
acceptable for consideration, “the chief engineer shall conduct an initial public hearing
on the question of designating such an area as a local enhanced management area
according to the local enhanced management plan.” 3
1 A ground water management district is “a contiguous area which overlies one or more aquifers, together
with any area in between, which is organized for groundwater management purposes under [K.S.A. 82a-
1020 et seq.].” K.S.A. 2017 Supp. 82a-1021(a)(4) (defining “district”).
2 These conditions are: “(a) Groundwater levels in the area in question are declining or have declined
excessively; or (b) the rate of withdrawal of groundwater within the area in question equals or exceeds the
rate of recharge in such area; or (c) preventable waste of water is occurring or may occur within the area
in question; [or] (d) unreasonable deterioration of the quality of water is occurring or may occur within the
area in question.” K.S.A. 82a-1036(a) through (d). See also K.S.A. 2017 Supp. 82a-1041(a).
3 K.S.A. 2017 Supp. 82a-1041(a).

Secretary Jackie McClaskey
Page 3
The purpose of the initial public hearing is to resolve three factual issues described in
K.S.A. 2017 Supp. 82a-1041(b). 4 “The chief engineer shall conduct a subsequent
hearing or hearings only if the initial public hearing is favorable on all three issues of fact
and the expansion of geographic boundaries is not recommended.” 5
After all hearings are conducted, the Chief Engineer is required to issue an order of
decision within 120 days of the conclusion of the final public hearing. If the Chief
Engineer issues an order of decision accepting the LEMA plan, he or she must also
issue an order designating the area in question as a LEMA. 6 K.S.A. 2017 Supp. 82a-
1041(j) 	requires 	the 	Chief 	Engineer 	to 	conduct 	periodic 	reviews 	of 	the 	LEMA
designation 	beginning 	seven 	years 	after 	the 	order 	of 	designation 	is 	final, 	unless
otherwise specified in that order.
Turning to your question, we apply the Kansas Supreme Court’s guidance concerning
statutory interpretation:
It is a fundamental rule of statutory construction, to which all other rules
are subordinate, that the intent of the legislature governs if that intent can
be ascertained. The legislature is presumed to have expressed its intent
through the language of the statutory scheme it enacted. When a statute
is plain and unambiguous, the court must give effect to the intention of the
legislature as expressed, rather than determine what the law should or
should 	not 	be. 	Stated 	another 	way, 	when 	a 	statute 	is 	plain 	and
unambiguous, the appellate courts will not speculate as to the legislative
intent behind it and will not read such a statute so as to add something not
readily found in the statute.7
In this case, neither K.S.A. 2017 Supp. 82a-1041 nor any other provision of K.S.A. 82a-
1020 through 82a-1040 provides additional procedural requirements that must be
observed in the event that the Chief Engineer retires or resigns during any of the
phases of LEMA designation proceedings that you describe. Nor do we find any other
Kansas statute that may impose additional procedural requirements. We therefore
presume that the absence of such additional procedures reflects legislative intent. To
read into those statutes a requirement that certain procedures must be followed in the
event of a change in the office of Chief Engineer would run afoul of the Supreme Court’s
guidance described above.
We therefore opine that Kansas law does not require any additional procedural steps to
be taken when the Chief Engineer of the Division of Water Resources retires or resigns
4 “The initial public hearing shall resolve the following findings of fact: (1) Whether one or more of the
circumstances specified in K.S.A. 82a-1036(a) through (d), and amendments thereto, exist; (2) whether
the public interest of K.S.A. 82a-1020, and amendments thereto, requires that one or more corrective
control provisions be adopted; and (3) whether the geographic boundaries are reasonable.” K.S.A. 2017
Supp. 82a-1041(b)(1) through (3).
5 K.S.A. 2017 Supp. 82a-1041(b).
6 K.S.A. 2017 Supp. 82a-1041(e).
7 Matter of Marriage of Killman, 264 Kan. 33, 42-43 (1998) (internal citations omitted).

Secretary Jackie McClaskey
Page 4
from that position during LEMA designation proceedings. However, as a technical
matter, we note that K.S.A. 2017 Supp. 82a-1041 includes certain deadlines that the
Chief Engineer must meet, and we therefore caution the agency to be mindful of such
deadlines in the event of a change in the office of Chief Engineer.
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Assistant Attorney General
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