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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