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, 2001.
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