(a) (1) "Classified stream segments" shall include all stream segments 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 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 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;
(C) are actually inhabited by threatened or endangered aquatic species 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 during periods of flow less than one cubic foot per second stream segments provide important refuges for aquatic life and 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 outweigh 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 downstream from such point where the department has issued a national pollutant discharge elimination system permit other than a permit for a confined feeding facility, as defined in K.S.A. 65-171d, and amendments thereto.
(2) Classified stream segments other than those described in subsection (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 classified 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 indigenous or migratory 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 segments that contain combinations of habitat types and indigenous biota not found commonly in the state, or classified stream segments that contain 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 segments containing habitat types and indigenous biota commonly found or expected in the state.
(C) "Restricted aquatic life use waters" means classified stream segments 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 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 segment for recreation during the period from April 1 through October 31 of each year, provided such classified stream segment is capable of supporting the recreational activities of swimming, skin diving, water skiing, wind surfing, kayaking 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.
(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 organisms 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 recreational 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 recreation is expected, during the period from April 1 through October 31 of each year, 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 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 exceeds the corresponding water quality criterion. The water quality criterion for primary contact recreational use-Class B 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.
(c) Primary contact recreational use-Class C: Use of a classified stream segment for recreation, where full body contact recreation is infrequent 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 primary 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 during 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 is use of a classified stream segment for recreation, provided such classified stream segment is capable of supporting the recreational activities of wading, 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.
(a) Secondary contact recreational use-Class A: Use of a classified stream segment for recreation capable of supporting the recreational activities 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 secondary 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 activities 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 recreational 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 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 exceeds the corresponding water quality criterion.
(B) If opposite sides of a classified stream segment would have different 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 water 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.
History: L. 2001, ch. 100, § 1; L. 2003, ch. 105, § 1; May 1.
History: L. 2001, ch. 100, § 2; Sept. 1.
(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 K.S.A. 2007 Supp. 82a-2001, 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 K.S.A. 2007 Supp. 82a-2001, 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 K.S.A. 2007 Supp. 82a-2001, and amendments thereto.
(c) All current stream classifications shall remain in effect until December 31, 2005, or as deleted or changed through the procedures set forth above.
History: L. 2001, ch. 100, § 3; Sept. 1.
(A) An aggregate of at least 25% of such classified stream segments shall have a designated use attainability analyses for recreational use completed 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 completed 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 completed 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 classified 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 department from completing designated use attainability analyses, the schedules provided for pursuant to subsections (a) and (b) shall be accelerated 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.
History: L. 2001, ch. 100, § 4; Sept. 1.
(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 conditions 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 attainability 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 proposed 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.
History: L. 2001, ch. 100, § 5; Sept. 1.
(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.
History: L. 2001, ch. 100, § 6; Sept. 1.
History: L. 2001, ch. 100, § 7; Sept. 1.
(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 K.S.A. 2007 Supp. 82a-2001, and amendments thereto; or
(2) authorize public access to private property unless such public access is otherwise authorized by law or by written permission of the landowner.
History: L. 2001, ch. 100, § 8; Sept. 1.
History: L. 2001, ch. 100, § 9; Sept. 1.
History: L. 2003, ch. 105, § 2; May 1.