Kansas HB 2312: Amending the Administrative Hearing Process for Orders of the Chief Engineer of the Division of Water Resources

HB  2312, 2017 Leg., Reg. Sess. (Kan. 2017) (concerning (i) codification and clarification of the administrative procedures for appealing orders or inactions of the chief engineer of the Division of Water Resources; and (ii) the classification of such appeal to fall under the Kansas Administrative Procedure Act).

House Bill 2312 (“HB 2312”) came before the Kansas 2017 Regular Legislative Session to clarify and codify the administrative procedures for aggrieved water users to appeal orders or inactions of the chief engineer of the Division of Water Resources of the Department of Agriculture.  The House Committee on Water and Environment sponsored the bill, and the legislature passed the original version with no changes, amendments, or opposition.  Former Governor Sam Brownback approved the bill on April 7, 2017 and it took effect on July 1, 2017.

Before passage of HB 2312, water users aggrieved by orders or inaction of the chief engineer had two paths for appeal.  The first option was to appeal directly to the chief engineer for review of the order.  The rules and regulations of the Division of Water Resources (“DWR”) provided this option, but it had no statutory backing.  This review consisted of an evidentiary administrative hearing.  The second option was to appeal to the secretary of agriculture, as provided by state statute.  This option did not entail an evidentiary hearing.

There were two problems with this dual scheme.  First, it was unclear whether aggrieved users should appeal to the chief engineer—as provided by the DWR rules and regulations—or to the secretary—as provided by statute.  Either option was available to the water users.  Second, for those users who first requested review by the secretary, rather than the chief engineer, there was no evidentiary record for the secretary to review to aid the decision-making.  Thus, in those cases, the secretary would refer the matter back to the chief engineer to create a record through an evidentiary hearing.  Once the chief engineer had held the evidentiary hearing, the engineer would then send the record to the secretary for review and decision.

HB 2312 clarified and streamlined the administrative process for water users choosing to appeal an order or inaction of the chief engineer.  The bill provides that, when users aggrieved by orders issued or any inaction by the chief engineer wish to appeal such order or inaction, the initial appeal is made directly to the chief engineer.  The user must make this appeal within fifteen days of the issuance of the order or the chief engineer’s failure to act. This initial appeal to the chief engineer would now fall under the Kansas Administrative Procedure Act.  After the chief engineer submits his decision, the user can then choose to appeal to the secretary within thirty days of issuance of the order.  This amendment removes the confusion about where the user should appeal first, as well as ensuring there will be a record available if the water user does appeal to the secretary.  The amendment retains the opportunity of the aggrieved user, after review and decision by the secretary, to appeal to the district court under the Kansas Judicial Review Act.

HB 2312 neither adds nor removes any due process rights for the aggrieved water user.  Rather, it clarifies and streamlines the process by codifying the existing process of appealing to the chief engineer and specifying the order of steps in the appeals process.  Aggrieved water users can now confidently enter the appeals process without concern over where to appeal first.  Additionally, the bill eliminated needless delay resulting from lack of an evidentiary record upon appeal to the secretary.

Kathleen Arsenault