SESSION OF 2021
SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2172
As Amended by House Committee of the Whole

Brief*
HB 2172, as amended, would amend the Kansas Water
Appropriation Act by expanding the opportunity for the
establishment of multi-year flex accounts (MYFAs) for
groundwater water rights to water right holders who did not
have water use between 2000 and 2009.
The bill would create the definition of “alternative base
average usage” that may be used in place of the base
average usage as:
● An allocation based on net irrigation requirements
calculated as 500 percent of the product of the
annual net irrigation requirement multiplied by the
flex account acreage, multiplied by 110 percent, but
not greater than 5 times the maximum annual
quantity authorized by the base water right.
The bill would amend the definition of “base water right”
to include the following conditions:
● Groundwater is the authorized source of water
supply, and
● The water right is not currently the subject of a
multi-year allocation due to a change approval that
allows an expansion of the authorized place of use.

____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org
 The bill would amend the definition of “base average
usage” to the average amount of water actually diverted for
the authorized beneficial use under the base water right
during calendar years 2000 through 2009. In addition, the bill
would also:
● Exclude from the definition of “base average
usage” any amount of water applied to the
unauthorized place of use from:
○ Any amount diverted in any year that
exceeded the amount authorized by the base
water right;
○ Any amount applied to an unauthorized place
of use; and
○ Diversions in calendar years when water was
diverted under a multi-year allocation with an
expansion of the authorized place of use due
to a change approval;
● Provide that the Chief Engineer may calculate the
base average usage with less than all 10 calendar
years during 2000 to 2009 if water usage records
are inadequate to accurately determine actual
water use or upon application of good cause by the
applicant; and
● Specify if the Chief Engineer is satisfied with the
base water right holder’s showing that water
conservation reduced water usage under the base
water right during 2000 to 2009, then the base
average usage must be calculated with the five
calendar years immediately before when the water
conservation began.
The bill would amend the definition of “flex account
acreage” to exclude any acres irrigated under a multi-year
allocation that allowed for an expansion of the authorized
place of use due to a change approval toward the maximum
number of acres lawfully irrigated during a calendar year if

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certain conditions are met. The bill would add a condition that
if an application to appropriate water was approved after
December 31, 2004, then the calendar year used for the
calculation could be any year during the perfection period.
The bill would authorize, if the base water right is
eligible, the base water right holder to establish an MYFA in
which the base water right holder may deposit the authorized
quantity of water for five consecutive calendar years in
advance, except when the Chief Engineer determines a
shorter period is necessary for compliance with a local
enhanced management area (LEMA) or an intensive
groundwater use control area (IGUCA) and the corrective
controls in the area do not prohibit the use of MYFAs. If the
MYFA is approved for less than five calendar years, the
amount of water deposited in the MYFA would be prorated
based on the number of calendar years approved or
calculated as required by the bill on the amount of water
deposited in the MYFA.
The bill would remove provisions relating to designated
drought emergency areas for 2011 and 2012.
The bill would also make technical amendments.

Background
The bill was introduced by the House Committee on
Water at the request of a representative of the Kansas
Department of Agriculture (KDA).
[Note: The bill, as introduced, contains provisions similar
to those of 2020 SB 270, as recommended by the House
Committee on Agriculture.]


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House Committee on Water
In the House Committee hearing on February 9, 2021, a
representative of the KDA testified as a proponent and
indicated there are water users in Kansas that are qualified to
participate in an MYFA, but are unable to participate because
they do not have the required historical water usage from
2000 to 2009. The representative stated approximately 1,600
water right permits are not currently eligible for MYFAs
because the water right was not perfected before 2009. He
testified the bill would allow an additional calculation method
for such water users under the new definition of alternative
base average usage.
Representatives of the Kansas Corn Growers
Association, Kansas Farm Bureau, and Kansas Groundwater
Management Districts provided written-only proponent
testimony. No other testimony was provided.
The House Committee amended the bill to remove the
references to “public interest” regarding how the Chief
Engineer might evaluate a potential MYFA in which a shorter
period of time is necessary for compliance with a LEMA or
IGUCA.
House Committee of the Whole
The House Committee of the Whole made technical
amendments to the wording of intensive groundwater use
control area.
Fiscal Information
According to the fiscal note prepared by the Division of
the Budget on the bill, as introduced, the KDA Division of
Water Resources indicates enactment of the bill would not
have a fiscal effect on agency expenditures or revenue.
Kansas Water Appropriation Act; multi-year flex account, water rights

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Statutes affected:
As introduced:
As Amended by House Committee:
{As Amended by House Committee of the Whole}:
Enrolled: