Brief (1)
Sub. for SB 204 would require the Kansas Department of Health and Environment (KDHE), prior to December 31, 2002, to review all stream segments listed in the 1999 Kansas Surface Water Register to determine whether the stream segments meet certain requirements of the definition of "classified stream segments" as established by the bill. Those segments which would be classified include those which are indicated on the federal Environmental Protection Agency's (EPA) Reach File 1 (1982) and have the most recent ten-year median flow of equal to or in excess of 1 cubic foot per second based on data collected and evaluated by the U.S. Geological Survey (USGS) or in the absence of stream segment flow data, calculations of flow conducted by extrapolation methods provided by the USGS or have the most recent ten-year median flow of equal to or in excess of 1 cubic foot per second based on data collected and evaluated by the USGS or in the absence of stream flow data, calculations of flow conducted by extrapolation methods provided by the USGS. KDHE would be required to begin the review of stream segments west of the 98th longitude line and consider stream flow data or methodologies of extrapolating flow from the USGS.
The bill also would require that prior to December 31, 2005, KDHE review all stream segments listed in the 1999 Surface Water Register which do not meet the criteria outlined above to determine if those stream segments are actually inhabited by threatened or endangered aquatic species listed in rules and regulations of the Kansas Department of Wildlife and Parks or the U.S. Fish and Wildlife Service; scientific studies conducted by KDHE show that pooling of water during periods of zero flow provide important refuges for aquatic life and permits biological recolonization of intermittently flowing segments and KDHE conducts a cost/benefit analysis taking into account the economic and social impact of classifying the stream segment and the analysis 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 are at the point of discharge on a stream segment and downstream where KDHE has issued a National Pollutant Discharge Elimination System (NPDES) permit. (This would not include NPDES permits for confined animal feeding operations.)
Classified stream segments other than those which have a point of discharge which has been issued a NPDES permit would not include ephemeral streams; grass, vegetative or other waterways; culverts; or ditches. All current stream classifications would remain in effect until December 31, 2005 or as deleted or changed through the procedures outlined above.
Further, the bill would require KDHE, prior to October 15, 2001, to make publicly available a listing of all currently classified stream segments for which designated use attainability analyses for recreational use have been completed; recreational use has been determined not attainable; or designated use attainability analyses recreational use has not been completed. The bill would establish a schedule by which designated use attainability analyses for recreational use for all classified stream segments would need to be completed. All designated use attainability analyses for recreational use would need to be completed by October 31, 2005.
Prior to October 15, 2002, KDHE would be required to make publicly available a listing of all currently classified for which designated use attainability analyses for use other than recreational use have been completed; use other than recreational use has been determined not available; or designated use attainability analyses for use other than recreational use have not been completed. KDHE would be required to adopt through rules and regulations a schedule by June 1, 2004, for the completion of these designated use attainability analyses.
The bill would require KDHE to accelerate the performance of these analyses prior to October 31, 2007, except if barred by extraordinary natural events. All current designated uses of classified stream segments listed in the 1999 Surface Water Register would remain in effect until December 31, 2007 or until deleted or changed through the procedures outlined above. A use or uses would not be designated unless it is demonstrated that the 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 the use or uses.
The bill would establish the following as designated uses of classified stream segments:
The bill would establish two subcategories for recreation use: primary contact and secondary contact. Primary contact recreational use would be use of a classified stream segment for recreation during the period from April 1 through October 31, provided the segment is open to and accessible by the public; is capable of supporting the recreational activities where the body is intended to be immersed in surface water to the extent that some inadvertent ingestion of water is probable. Secondary contact recreation use would be use of a classified stream segment for recreation if the segment by law or by written permission of the landowner is open to and accessible by the public and is capable of supporting the recreational activities of wading or fishing where the body is not intended to be immersed and where ingestion is not probable; or is use of classified stream segment for recreation, provided the segment is not open to and accessible by the public under Kansas law is capable of supporting the recreational activities of swimming, skin diving, water skiing, wind surfing, boating, mussel harvesting, wading, or fishing. If opposite sides of a classified stream have different recreational use due to differences in public access, the designated use of the entire segment may be the higher attainable use, notwithstanding that the designation does not grant public access to both sides of the segment.
The bill would require that within 60 days of receipt of a designated use attainability analysis, KDHE would review and provide a written determination as to whether the analysis is complete. Also, within 60 days after receipt, KDHE would determine if the designated use would be proposed as a rule and regulation. Any person aggrieved by the determination, within 30 days of receipt, could request a meeting with the Secretary or the Secretary's designee to discuss the determination and exchange information. All changes to the Kansas Surface Water Register would be adopted in accordance with the Rule and Regulation Filing Act. Any person aggrieved may request a hearing by filing an application for an order under the Kansas Administrative Procedure Act. Any action is subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions. The Kansas Surface Water Register would be updated and published annually.
Further, the bill would require the Secretary of KDHE to report annually, on or before the first day of the legislative session, regarding the status of completing the classification of streams and the designated use attainability analyses. The report would be made to the Governor and to the chairperson, vice chairperson, and ranking minority member of the House Environment Committee and the Senate Natural Resources Committees. On or before February 15, 2003, the Secretary would report to the same individuals regarding the status of new methodologies of measuring stream flow, in particular that under development by the USGS.
The bill also would require the Secretary of KDHE to 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 bill outlines the procedures for the establishment of the designated use attainability analysis protocols.
The bill would provide, subject to appropriations, for an additional employee at the State Conservation Commission to work on total maximum daily load compliance and to coordinate with KDHE and other appropriate federal and state agencies to further implement voluntary incentive based on conservation programs to protect water quality.
The bill also would provide that the bill not be construed to require the Secretary of KDHE to designate the use of any classified stream as secondary contact recreation or authorize public access to private property unless the public access is otherwise authorized by law or by written permission of the landowner.
The bill has a severability clause.
The bill has an effective date of September 1, 2001.
Background
This bill was introduced at the request of Senator Lee. At the hearing on the original bill, Senator Lee stated that the bill was an attempt to correct the over-extension of classified water made by the Kansas Department of Health and Environment in the establishment of 1994 water quality standards. She stated that it was clear that the misclassification of both intermittent low flow streams and depressions where there are no waters classified as streams came about because of a convenient map and was not based on any thorough scientific study. Also appearing as a proponent was a spokesperson for Kansans for Common Sense Water Policy. This conferee stated that the bill provided a new definition of classified streams that will correct a fundamental problem with Kansas water quality standards. This spokesperson stated that many of the classified streams are not streams at all and convey water intermittently or only during significant precipitation events. Providing written comments in support of the bill were: the Kansas Agricultural Aviation Association/Kansas Seed Industry Association; the Kansas Agricultural Alliance; the Kansas Farm Bureau; and the Kansas Grain and Feed Association/Kansas Fertilizer and Chemical Association.
A spokesperson from the Friends of the Kaw indicated that the bill would reverse 30 years of water quality improvements in Kansas; put Kansas in clear violation of the Federal Clean Water Act; and threaten all uses of our rivers and streams. A spokesperson from the Kansas Society of Professional Engineers also spoke against the bill. The Chief Engineer of Johnson County Wastewater provided written comments in opposition to the bill.
The Secretary of the Kansas Department of Health and Environment expressed concerns regarding certain provisions in the bill. The Secretary stated that the bill would hinder the adequate protection of the surface water of the state and place in jeopardy the state's compliance with federal laws and regulations.
At the conclusion of the hearing on the original bill, the Chairperson of the Senate Committee appointed a subcommittee to consider the bill further. The substitute bill encompasses the recommendations of the subcommittee. Additional hearings were held on the provisions of the substitute bill.
The fiscal note on the original bill states that the Kansas Department of Health and Environment indicates passage of SB 204 would have no fiscal effect.
The Senate Committee of the Whole amended the bill to: delete language which had required social and economic studies which were to indicate, by clear and convincing evidence, that the benefits of classification outweighed the social, economic, or regulatory costs of the state and the regulated community; add language that would require KDHE to conduct a cost/benefit analysis that takes into account the economic and social impact of classifying the stream segment (the analysis must indicate that the benefits of classification outweigh the costs); provide that classified streams would include those waters that are at the point of discharge on the stream segment and downstream from the point where KDHE has issued a NPDES permit (not including those NPDES permits issued for confined animal feeding operations); redefine the term "recreational use"; provide for an additional employee at the State Conservation Commission; clarify that nothing in the bill would be construed to authorize public access to private property unless public access is otherwise authorized by law or by written permission of the landowner; and make the bill effective on September 1, 2001.
The House Committee on Environment amended the bill, among other things, to:
1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext.cgi