Session Law

Identifying Information:L. 2001 ch. 100
Other Identifying Information:2001 Substitute for Senate Bill 204
Tax Type:Other
Brief Description:An Act concerning the waters of the state; relating to classified stream segments anddesignated uses of classified stream segments.
Keywords:


Body:

CHAPTER 100

Substitute for SENATE BILL No. 204


An Act concerning the waters of the state; relating to classified stream segments and

designated uses of classified stream segments.

Be it enacted by the Legislature of the State of Kansas:

Section 1. As used in this act:

(a) (1) ``Classified stream segments'' shall include all stream seg-

ments that are waters of the state as defined in subsection (a) of K.S.A.

65-161, and amendments thereto, and waters described in subsection (d)

of K.S.A. 65-171d, and amendments thereto, that:

(A) Are indicated on the federal environmental protection agency's

reach file 1 (RF1) (1982) and have the most recent 10-year median flow

of equal to or in excess of 1 cubic foot per second based on data collected

and evaluated by the United States geological survey or in the absence of

stream segment flow data, calculations of flow conducted by extrapolation

methods provided by the United States geological survey;

(B) have the most recent 10-year median flow of equal to or in excess

of 1 cubic foot per second based on data collected and evaluated by the

United States geological survey or in the absence of stream segment flow

data, calculations of flow conducted by extrapolation methods provided

by the United States geological survey;

(C) are actually inhabited by threatened or endangered aquatic spe-

cies listed in rules and regulations promulgated by the Kansas department

of wildlife and parks or the United States fish and wildlife service;

(D) (i) scientific studies conducted by the department show that

pooling of water during periods of zero flow provides important refuges

for aquatic life and permits biological recolonization of intermittently

flowing segments; and

(ii) a cost/benefit analysis conducted by the department and taking

into account the economic and social impact of classifying the stream

segment indicates that the benefits of classifying the stream segment out-

weigh the costs of classifying the stream segment, as consistent with the

federal clean water act and federal regulations; or

(E) are at the point of discharge on the stream segment and down-

stream from such point where the department has issued a national pol-

lutant discharge elimination system permit other than a permit for a con-

fined feeding facility, as defined in K.S.A. 65-171d, and amendments

thereto.

(2) Classified stream segments other than those described in subsec-

tion (a)(1)(E) shall not include ephemeral streams; grass, vegetative or

other waterways; culverts; or ditches.

(3) Any definition of classified stream or ``classified stream segment''

in rules and regulations or law that is inconsistent with this definition is

hereby declared null and void.

(b) ``Department'' means the department of health and environment.

(c) ``Designated uses of classified stream segments'' shall be defined

as follows:

(1) ``Agricultural water supply use'' means the use of a classified

stream segment for agricultural purposes, including the following:

(A) ``Irrigation'' means the withdrawal of water from a classified

stream segment for application onto land; or

(B) ``livestock watering'' means the provision of water from a classi-

fied stream segment to livestock for consumption.

(2) ``Aquatic life support use'' means the use of a classified stream

segment for the maintenance of the ecological integrity of streams, lakes

and wetlands, including the sustained growth and propagation of native

aquatic life; naturalized, important, recreational aquatic life; and indige-

nous or migratory semi aquatic or terrestrial wildlife directly or indirectly

dependent on surface water for survival. Categories of aquatic life support

use include:

(A) ``Special aquatic life use waters'' means classified stream seg-

ments that contain combinations of habitat types and indigenous biota

not found commonly in the state, or classified stream segments that con-

tain representative populations of threatened or endangered species, that

are listed in rules and regulations promulgated by the Kansas department

of wildlife and parks or the United States fish and wildlife service.

(B) ``Expected aquatic life use waters'' means classified stream seg-

ments containing habitat types and indigenous biota commonly found or

expected in the state.

(C) ``Restricted aquatic life use waters'' means classified stream seg-

ments containing indigenous biota limited in abundance or diversity by

the physical quality or availability of habitat, due to natural deficiencies

or artificial modifications, compared to more suitable habitats in adjacent

waters.

(3) ``Domestic water supply'' means the use of a classified stream

segment, after appropriate treatment, for the production of potable water.

(4) ``Food procurement use'' means the use of a classified stream

segment for the obtaining of edible forms of aquatic or semi aquatic life

for human consumption.

(5) ``Groundwater recharge use'' means the use of a classified stream

segment for the replenishing of fresh or usable groundwater resources.

This use may involve the infiltration and percolation of surface water

through sediments and soils or the direct injection of surface water into

underground aquifers.

(6) ``Industrial water supply use'' means the use of a classified stream

segment for nonpotable purposes by industry, including withdrawals for

cooling or process water.

(7) (A) ``Recreational use'' means:

(i) Primary contact recreational use is use of a classified stream seg-

ment for recreation during the period from April 1 through October 31

of each year, provided such classified stream segment (a) by law or written

permission of the landowner is open to and accessible by the public and

(b) is capable of supporting the recreational activities of swimming, skin

diving, water-skiing, wind surfing, boating or mussel harvesting where the

body is intended to be immersed in surface water to the extent that some

inadvertent ingestion of water is probable;

(ii) Secondary contact recreational use:

(a) is use of a classified stream segment for recreation, provided such

classified stream segment (1) by law or by written permission of the land-

owner is open to and accessible by the public and (2) is capable of sup-

porting the recreational activities of wading or fishing where the body is

not intended to be immersed and where ingestion of surface water is not

probable; or

(b) is use of a classified stream segment for recreation, provided such

classified stream segment (1) is not open to and accessible by the public

under Kansas law and (2) is capable of supporting the recreational activ-

ities of swimming, skin diving, water-skiing, wind surfing, boating, mussel

harvesting, wading or fishing.

(B) If opposite sides of a classified stream segment would have dif-

ferent designated recreational uses due to differences in public access,

the designated use of the entire classified stream segment may be the

higher attainable use, notwithstanding that such designation does not

grant the public access to both sides of such segment.

(C) Recreational use designations shall not apply to stream segments

where the natural, ephemeral, intermittent or low flow conditions or wa-

ter levels prevent recreational activities.

(d) ``Ephemeral stream'' means streams that flow only in response to

precipitation and whose channel is at all times above the water table.

(e) ``Secretary'' means the secretary of health and environment.

Sec. 2. Notwithstanding any other provisions of law and in addition

to the powers of the secretary pursuant to K.S.A. 65-171d, and amend-

ments thereto, the secretary shall establish classified stream segments in

Kansas and, following such classification, designate use of such classified

stream segments pursuant to sections 3 and 4, and amendments thereto.

Sec. 3. (a) Prior to December 31, 2002, the department shall review

all stream segments listed on the 1999 Kansas surface water register and

determine whether such stream segments meet the definitions of classi-

fied stream segments pursuant to paragraph (a)(1)(A) or (a)(1)(B) of sec-

tion 1, and amendments thereto. The department shall begin the review

with stream segments listed on the 1999 Kansas surface water register

west of the 98th longitude line and consider stream flow data or meth-

odologies of extrapolating flow from the United States geological survey.

(b) Prior to December 31, 2005, the department shall review all

stream segments listed on the 1999 Kansas surface water register which

do not meet the definitions of classified stream segments pursuant to

paragraph (a)(1)(A) or (a)(1)(B) of section 1, and amendments thereto,

and determine whether such stream segments meet the definitions of

classified stream segments pursuant to paragraph (a)(1)(C), (a)(1)(D) or

(a)(1)(E) of section 1, and amendments thereto. The department shall

establish a procedure, adopted in rules and regulations, requiring that all

of the reviews and findings have been met pursuant to paragraph

(a)(1)(D) of section 1, and amendments thereto.

(c) All current stream classifications shall remain in effect until De-

cember 31, 2005, or as deleted or changed through the procedures set

forth above.

Sec. 4. (a) Prior to October 15, 2001, the department shall make

publicly available a listing of all currently classified stream segments for

which: (1) Designated use attainability analyses for recreational use have

been completed; (2) recreational use has been determined not attainable;

or (3) designated use attainability analyses for recreational use have not

been completed. For such classified stream segments for which desig-

nated use attainability analyses for recreational use have not been com-

pleted, the department, at a minimum, shall complete a designated use

attainability analysis for recreational use according to the following sched-

ule:

(A) An aggregate of at least 25% of such classified stream segments

shall have a designated use attainability analyses for recreational use com-

pleted prior to October 31, 2002.

(B) An aggregate of at least 50% of such classified stream segments

shall have a designated use attainability analyses for recreational use com-

pleted prior to October 31, 2003.

(C) An aggregate of at least 75% of such classified stream segments

shall have a designated use attainability analyses for recreational use com-

pleted prior to October 31, 2004.

(D) All of such classified stream segments shall have designated use

attainability analyses for recreational use completed prior to October 31,

2005.

(b) Prior to October 15, 2002, the department shall make publicly

available a listing of all currently classified stream segments for which:

(1) Designated use attainability analyses for use other than recreational

use have been completed; (2) use other than recreational use has been

determined not attainable; or (3) designated use attainability analyses for

use other than recreational use have not been completed. For such clas-

sified stream segments for which designated use attainability analyses for

use other than recreational use have not been completed, the department,

at a minimum, shall complete a designated use attainability analysis for

use other than recreational use according to a schedule adopted before

June 1, 2004, by rules and regulations of the secretary.

(c) Barring flooding or acts of God, which would prevent the de-

partment from completing designated use attainability analyses, the

schedules provided for pursuant to subsections (a) and (b) shall be ac-

celerated to allow for completion of designated use attainability analyses

for all designated uses on or before December 31, 2007.

(d) All current designated uses of classified stream segments listed

on the Kansas surface water register 1999 shall remain in effect until

December 31, 2007, or until deleted or changed through the procedures

set forth above.

Sec. 5. (a) Prior to December 1, 2001, the secretary shall publish as

guidance designated use attainability analysis protocols for the revision

and adoption of designated uses of classified stream segments to protect

the public health or welfare and to enhance the quality of classified stream

segments. The secretary shall take into consideration the uses and values

of such waters for public water supplies, propagation of fish and wildlife,

navigation and recreational, agricultural, industrial and other purposes.

(b) The designated use attainability analysis protocols shall include,

if applicable for the respective designated use, procedures for:

(1) Review of physical, chemical, biological and economic and social

factors affecting attainment of a use or uses;

(2) review of naturally-occurring pollutant concentrations and con-

ditions affecting attainment of a use or uses;

(3) review of natural, ephemeral, intermittent or low flow conditions

or water levels affecting attainment of a use or uses;

(4) review of human conditions that prevent attainment of a use or

uses, including state laws, and that cannot be remedied or that would

cause more damage or an inproportionate cost to remedy than to leave

in place;

(5) review of hydrologic modifications such as dams and diversions

affecting attainment of a use or uses;

(6) review of physical conditions related to natural features such as

lack of proper substrate, cover, flow, depth, pools, riffles and other stream

morphology affecting attainment of a use or uses;

(7) identification and description of cost-effective and reasonable best

management practices for non-point source pollutant control where such

control would be needed to attain a use or uses; and

(8) qualified persons outside the department to conduct designated

use attainability analyses.

(c) A use or uses shall not be designated unless it is demonstrated

that such use or uses are actually existing and attainable, or unless it is

demonstrated that the adverse social and economic impacts of designating

a use or uses that are not actually existing are outweighed by the social

and economic benefits resulting from the attainment of such use or uses.

(d) Within 60 days after receipt of submission of a use attainability

analysis, the department shall review and provide a written determination

of whether the documentation submitted is complete.

(e) Within 60 days after receipt of submission of a complete use at-

tainability analysis, the department shall review and provide a written

determination of whether revision of the designated use will be proposed

as a rule and regulation. Any person aggrieved by such determination may

make written request, within 30 days after receipt of such determination,

for a meeting with the secretary or the secretary's designee to discuss the

determination and exchange information.

(f) All proposed revisions to the surface water register shall be pro-

posed for adoption in accordance with the rules and regulations filing act

(K.S.A. 77-415, and amendments thereto).

(g) Following the promulgation of a revision of the surface water

register as a rule and regulation pursuant to subsections (d) and (e), any

person aggrieved by such promulgation, within 15 days after publication

of the rule and regulation, may request a hearing by filing an application

for an order under the Kansas administrative procedure act. Any action

of the secretary in a proceeding pursuant to this subsection is subject to

review in accordance with the act for judicial review and civil enforcement

of agency actions.

(h) The Kansas surface water register shall be updated and published

annually.

Sec. 6. (a) Annually, on or before the first day of the legislative ses-

sion, the secretary shall prepare and submit a report to the governor and

the chairperson, vice-chairperson and ranking minority member of the

standing committees of the house of representatives and the senate on

environment and natural resources regarding the status of completing the

classification of streams as required in section 3, and amendments

thereto, and designated use attainability analyses as required in section

4, and amendments thereto.

(b) On or before February 15, 2003, the secretary shall report to the

governor and the chairperson, vice-chairperson and ranking minority

member of the standing committees of the house of representatives and

the senate on environment and natural resources regarding the status of

new methodologies of measuring stream flow, in particular that under

development by the United States geological survey.

Sec. 7. Subject to appropriations, there shall be an additional em-

ployee at the state conservation commission to work on total maximum

daily load compliance and to coordinate with the department and other

appropriate federal and state agencies to further implement voluntary

incentive based conservation programs to protect water quality.

Sec. 8. Nothing in this act shall be construed to:

(1) Require the secretary to designate the use of any classified stream

as secondary contact recreational use pursuant to subsection

(c)(7)(A)(ii)(b) of section 1, and amendments thereto; or

(2) authorize public access to private property unless such public ac-

cess is otherwise authorized by law or by written permission of the land-

owner.

Sec. 9. If any provisions of this act or its application to any person or

circumstances is held invalid, the invalidity does not affect other provi-

sions or applications of the act that can be given effect without the invalid

provisions or application. To this end the provisions of this act are sev-

erable.

Sec. 10. This act shall take effect and be in force from and after

September 1, 2001, and its publication in the statute book.

Approved April 13, 2000.


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Date Composed: 09/25/2001 Date Modified: 09/25/2001