Session Law

Identifying Information:L. 2003 ch. 105
Other Identifying Information:2003 Senate Substitute for Substitute for House Bill 2219
Tax Type:Other
Brief Description:An Act concerning classified stream segments; relating to recreational use; amending K.S.A. 2002 Supp. 82a-2001 and repealing the existing section.
Keywords:


Body:

CHAPTER 105

Senate Substitute for Substitute for HOUSE BILL No. 2219


An Act concerning classified stream segments; relating to recreational use; amending

K.S.A. 2002 Supp. 82a-2001 and repealing the existing section.

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

Section. 1. K.S.A. 2002 Supp. 82a-2001 is hereby amended to read

as follows: 82a-2001. 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 one 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 one 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 pro-

vided 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 less than one cubic foot per

second stream segments provides provide important refuges for aquatic

life and permits permit 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 semiaquatic 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

semiaquatic 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 water skiing, wind surfing, boating kayaking or mus-

sel harvesting where the body is intended to be immersed in surface water

to the extent that some inadvertent ingestion of water is probable;.

(a) Primary contact recreational use-Class A: Use of a classified

stream segment for recreation during the period from April 1 through

October 31 of each year, and the classified stream segment is a designated

public swimming area. Water quality criterion for bacterial indicator or-

ganisms applied to Class A waters shall be set at an illness rate of eight

or more per 1000 swimmers. The classified stream segment shall only be

considered impaired for primary contact recreational use-Class A if the

calculated geometric mean of at least five samples collected in separate

24-hour periods within a 30-day period exceeds the corresponding water

quality criterion. The water quality criterion for primary contact recre-

ational use-Class A waters during the period November 1 through March

31 of each year shall be equal to the criterion applied to secondary contact

recreational use-Class A waters.

(b) Primary contact recreational use-Class B: Use of a classified

stream segment for recreation, where moderate full body contact recrea-

tion is expected, during the period from April 1 through October 31 of

each year, and the classified stream segment is by law or written permis-

sion of the landowner open to and accessible by the public. Water quality

criterion for bacterial indicator organisms applied to Class B waters shall

be set at an illness rate of 10 or more per 1000 swimmers. The classified

stream segment shall only be considered impaired for primary contact

recreational use-Class B if the calculated geometric mean of at least five

samples collected in separate 24-hour periods within a 30-day period ex-

ceeds the corresponding water quality criterion. The water quality crite-

rion for primary contact recreational use-Class B waters during the pe-

riod November 1 through March 31 of each year shall be equal to the

criterion applied to secondary contact recreational use-Class A waters.

(c) Primary contact recreational use-Class C: Use of a classified

stream segment for recreation, where full body contact recreation is in-

frequent during the period from April 1 through October 31 of each year,

and is not open to and accessible by the public under Kansas law and is

capable of supporting the recreational activities of swimming, skin diving,

water-skiing, wind surfing, boating, mussel harvesting, wading or fishing.

Water quality criterion for bacterial indicator organisms applied to Class

C waters shall be set at an illness rate of 12 or more per 1000 swimmers.

The classified stream segment shall only be considered impaired for pri-

mary contact recreational use-Class C if the calculated geometric mean

of at least five samples collected in separate 24-hour periods within a 30-

day period exceeds the corresponding water quality criterion. The water

quality criterion for primary contact recreational use-Class C waters dur-

ing the period November 1 through March 31 of each year shall be equal

to the criterion applied to secondary contact recreational use-Class B

waters.

(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, canoeing, motor

boating, rafting or other types of boating where the body is not intended

to be immersed and where ingestion of surface water is not probable; or.

(a) Secondary contact recreational use-Class A: Use of a classified

stream segment for recreation capable of supporting the recreational ac-

tivities of wading or fishing and the classified stream segment is by law

or written permission of the landowner open to and accessible by the

public. Water quality criterion for bacterial indicator organisms applied

to secondary contact recreational use-Class A waters shall be nine times

the criterion applied to primary contact recreational use-Class B waters.

The classified stream segment shall only be considered impaired for sec-

ondary contact recreational use-Class A if the calculated geometric mean

of at least five samples collected in separate 24-hour periods within a 30-

day period exceeds the corresponding water quality criterion.

(b) Secondary contact recreational use-Class B: Use of a classified

stream segment for recreation capable of supporting the recreational ac-

tivities of wading or fishing and the classified stream segment is not open

to and accessible by the public under Kansas law. Water quality criterion

for bacterial indicator organisms applied to secondary contact recrea-

tional use- Class B waters shall be nine times the criterion applied to

primary contact recreational-Class C use waters. The classified stream

segment shall only be considered impaired for secondary contact recrea-

tional use-Class B if the calculated geometric mean of at least five samples

collected in separate 24-hour periods within a 30-day period exceeds the

corresponding water quality criterion.

(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.

New Sec. 2. The secretary of health and environment shall develop

and publish proposed rules and regulations to incorporate the provisions

of this act, in accordance with the rules and regulations filing act, on or

before July 1, 2003.

Sec. 3. K.S.A. 2002 Supp. 82a-2001 is hereby repealed.

Sec. 4. This act shall take effect and be in force from and after its

publication in the Kansas register.

Approved April 21, 2002.

Published in the Kansas Register May 1, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003