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, 2003.
Published in the Kansas Register May 1, 2003.
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