What Ever Happened to Senate Bill 204?

In 2001, the issue of when is a stream not a stream in Kansas came to the fore as a result of the state’s obligation to provide the Environmental Protection Agency (EPA) with a list of designated uses for its streams.  Once a stream is classified as a stream, its uses can be designated. After the uses for a stream are designated, then it can be determined whether the stream meets those uses.

The Kansas Department of Health and Environment (KDHE), charged with carrying out provisions of the Clean Water Act, initially worked from a topographical map to identify streams and assign uses. The kicker is that once a use is designated with or without on-the-ground verification, it can’t be removed without a formal Use Attainability Analysis (UAA).

When landowners learned that the intermittent draw that crossed their land had been designated for recreational use (suitable for fishing and swimming), they rallied to push legislation that would define a stream. It made no sense to them that the swales and gullies in and along their fields or rangeland that they’d farmed or grazed for years would be considered a stream.

Environmental interests, led by the Kansas Sierra Club, contended that what happens in an upstream drainage affects downstream uses. Even the secretaries of the Kansas Department of Health and Environment and the Kansas Department of Agriculture became embroiled in the issue.

The upshot, passage of Substitute for Senate Bill 204 by the Kansas Legislature defined classified stream segments. It did not address lakes or wetlands. Under the law, KDHE is to review all stream segments listed on the 1999 Kansas Surface Water Register which do not meet the law’s definition of a classified stream segment prior to December 31, 2005.  Classified stream segments under SB204 (K.S.A. 82a-2001 et. seq.) are explained below.

Classified stream segments under KSA 82a-2001 et. seq. must meet one of five requirements to be a classified stream. They are:

  • Stream segments indicated on the Environmental Protection Agency’s Reach File 1 (RF1 promulgated in 1982) and have the most recent 10-year median flow of equal to or in excess of 1 cubic foot per second (cfs). A cubic foot per second equals 450 gallons per minute. The U.S. Geological Survey, under contract with KDHE, completed on Dec. 31, 2002 the study and modeling to determine which streams met the 1 cfs or greater flow threshold.
  • Stream segments not indicated on EPA’s RF1 and have the most recent 10-year median flow of equal to or in excess of 1 cfs.
  • Stream segments actually inhabited by threatened or endangered aquatic species
  • Stream segments at the point of discharge and downstream from such point where the Kansas Department of Health and Environment has issued a National Pollutant Discharge Elimination System (NPDES) permit.
  • A stream shall be classified if scientific studies conducted by KDHE show that stream segments provide important refuges for aquatic life during periods of flow of less than one cfs. If aquatic life is present, then a cost/benefit analysis needs to be conducted. For a stream to be classified under this criterion, the cost/benefit analysis must show that the benefits of classifying the stream segment outweigh the costs. (This requirement was amended as required by the 2003 Kansas Legislature through House bill No. 2219 on Oct. 1, 2003.  The cost/benefit analysis was not approved by EPA as part of the State’s Water Quality Standards.)

Current Status

Stream exploration conjures images of warm spring days and relaxation for most of us.  For the Bureau of Environmental Field Services of the Kansas Department of Health and Environment, stream exploration, or assessment, is work. Their work will assess which waterways qualify as streams and the statutory uses they meet.

In 2001, the job began to assess whether the state’s 2,232 stream segments and 365 lakes, wetlands, wildlife areas and ponds met the seven designated uses defined in the Kansas Surface Water Quality Standards (K.A.R. 28-16-28d (b) or K.S.A. 82a-2001). All of the water bodies are listed in the Kansas Surface Water Register.

Recreation was the first designated use to be evaluated by the Bureau of Environmental Field Services using the Use Attainability Analysis (UAA) process. Both primary and secondary contact recreation were addressed. The distinction between the two relates to the degree of contact with the water. Swimming would be considered primary contact; wading, secondary contact. Amendments to the law in 2003 also sub-categorized recreation by degree of accessibility, creating three categories of primary recreation and two for secondary recreation.

Stream recreational UAA surveys are conducted from county road bridges. Digital photos are made both upstream and downstream of the survey site. The length, width and depth of aquatic habitats are measured. In addition, the survey team notes an estimate of the type of flow, the type of substrate (rock, sand or mud bottom), the type of stream (perennial, intermittent or ephemeral) and any aquatic life present. Any recreational uses at the survey site and water quality impacts are posted.  Assessment of accessibility also is made.

UAAs have been completed and approved on 480 stream segments. Approval is pending on 427 stream segment UAAs completed in 2003 and 537 completed in 2004. Stream recreational UAAs are to be completed on 560 streams by the statutory deadline of Dec. 31, 2005. For all changes to be effective, the UAAs and Kansas Surface Water Register changes (deletion of stream segments; changes in recreation status) have to go through a public notice and hearing process. They also have to be approved by the EPA as detailed in the Clean Water Act and federal regulations.

The next step, to conduct UAAs on all other designated uses, must be completed by Dec. 31, 2007.

The designated uses in addition to recreation are:

  • Aquatic life support use
  • Agriculture water supply use
  • Domestic water supply use
  • Industrial water supply use
  • Food procurement use
  • Groundwater recharge use

For additional information, contact Craig Thompson, KDHE’s Bureau of Environmental Field Services, Topeka. His e-mail address is cthompson@kdhe.state.ks.us or call (785) 296-5569.  Additional information may be found at www.kdhe.state.ks.us/befs/resources_publications.html

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