868             1997 Session Laws of Kansas             Ch. 148

An Act concerning surface water quality; relating to application of certain stream desig-
nations and certain standards; creating the special commission on water quality standards
and specifying the membership and functions thereof.

Whereas, The federal clean water act and regulations adopted under
that act set out broad parameters for the establishment of state water
quality standards; and
Whereas, The federal act and regulations recognize that standards
should take into consideration the use and value of waters for a variety
of purposes, including public water supplies, propagation of fish and wild-
life, and recreational, agricultural and industrial purposes; and
Whereas, The federal act and regulations give the state broad latitude
to designate water uses, giving due consideration to social and economic
factors; and
Whereas, The state has the responsibility and obligation to ensure pub-
lic health and environmental protection through the identification, adop-
tion and enforcement of scientifically established surface water quality
standards within a cost-effective framework; and
Whereas, The United States Environmental Protection Agency's Na-
tional Ammonia Criteria Document recognizes that there is insufficient
scientific data to derive a broadly applicable standard for ammonia toxicity
and evidence submitted to the Environmental Protection Agency for the
Triazine Special Review indicates that the numeric chronic aquatic life
criteria for atrazine is not based on scientific evidence; and
Whereas, The special aquatic life use waters designation, the numeric
aquatic life criteria for total ammonia and chloride, and the numeric
chronic aquatic life criteria for atrazine contained in the 1994 surface
water quality standards adopted by the Department of Health and En-
vironment may be based on incorrect information and thereby cause

Ch. 148             1997 Session Laws of Kansas             869

widespread and substantial unnecessary social and economic impacts
without appreciably benefiting the environment: Now, therefor,

Be it enacted by the Legislature of the State of Kansas:
Section 1. As used in this act, unless the context otherwise requires:

(a) ``Department'' means the department of health and environment.

(b) ``Secretary'' means the secretary of health and environment.

(c) ``1994 Surface water quality standards'' means the Kansas surface
water quality standards found at K.A.R. 28-16-28b et seq., as in effect
August 29, 1994.

Sec. 2. On and after the effective date of this act and before July 1,
1999:

(a) The department shall use a mixing zone of 50% of the average
cross-sectional area of the stream based on either a low flow provision of
one cubic foot per second or the 7Q10 flow, whichever is the greater
existing condition in the receiving stream, in determining NPDES permit
limits for total ammonia and chlorides under subsections (b) and (d) for
permits issued by the department.

(b) Unless an applicant for a new or renewal NPDES permit agrees
to meet all 1994 surface water quality standards, notwithstanding the
provisions of subsection (a), the department shall not require the appli-
cant to comply with the numeric aquatic life criteria for total ammonia
and chlorides that are contained in the 1994 surface water quality stan-
dards and shall instead require an applicant to comply with the applicant's
existing permit requirements, including mixing zone provisions applicable
to the permit, for numeric criteria for total ammonia and chlorides or
with the criteria for total ammonia and chlorides that took effect May 1,
1987, whichever is more protective. Nothing herein shall be construed to
require compliance with mixing zone provisions and numeric aquatic life
criteria for total ammonia and chlorides that are more restrictive than the
1994 surface water quality standards.

(c) The department shall not use the numeric chronic aquatic life
criteria for atrazine in Table 1a of subsection (d) of K.A.R. 1995 Supp.
28-16-28e and shall rely instead on the greater of either a standard of 3
parts per billion for atrazine or any revised numeric chronic aquatic life
criteria for atrazine adopted by the department after consideration of any
new criteria recommended by the United States environmental protec-
tion agency after the effective date of this act. Conformance with the
atrazine standard shall be determined by application of the methodology
used in the 1996 Kansas water quality assessment report (305(b) report)
published by the department.

(d) Permits issued for expansion, upgrade or new construction of
wastewater treatment facilities and modifications and renewals of existing

870             1997 Session Laws of Kansas             Ch. 148

permits shall include the following statement of conditions, which shall
be legally binding and enforceable upon the permittee:

``The permittee who does not agree to meet effluent limitations as necessary to attain the
aquatic life criteria for ammonia and chlorides within the 1994 surface water quality stan-
dards incurs and acknowledges the legal duty and obligation to bring the facilities and
operations authorized by this permit into compliance with the permit effluent limitations
based on the 1994 surface water quality standards within 24 months after July 1, 1999,
unless before July 1, 1999, revised numeric criteria for ammonia and chlorides are adopted
pursuant to subsection (g) of section 3, in which case the permittee incurs and acknowledges
the legal duty and obligation to bring such facilities and operations into compliance with
the permit effluent limitations based on the revised criteria within 24 months following the
date of adoption of the rules and regulations containing the revised criteria.''

(e) The department shall develop a plan and permit conditions that
will assist entities that, on the effective date of this act, hold a permit or
are applicants for a permit in meeting the requirements of this section
relating to total ammonia and chlorides.

Sec. 3. (a) There is hereby created the Kansas special commission
on surface water quality standards. Within the limits of appropriations
therefor, the commission shall undertake the following activities:

(1) Investigate and evaluate the technical and scientific basis of the
1994 surface water quality standards, including: (A) Stream designations
use attainability analysis as required when compiling the 1996 Kansas
Water Quality Assessment 305(b) report pursuant to 33 U.S.C.
1315(b)(1)(D) or 33 U.S.C. 1313(c)(2)(A); (B) low, high and yearly av-
erage flow impact criteria; and (C) scientific appropriateness of the cri-
teria guidance of the United States Environmental Protection Agency and
the department;

(2) evaluate whether the 1994 surface water quality standards, in-
cluding the use designations, surface water chemical and microbial cri-
teria and the ``Kansas Surface Water Register,'' as published by the de-
partment on June 20, 1994, are based on sound scientific and technical
data and information, whether such standards are more stringent than
are required by federal law and those of other midwestern and plains
states, whether generally accepted criteria exist for evaluating the appro-
priateness and cost-effectiveness of the standard and whether the de-
partment should be directed to make any changes in the standards;

(3) develop and recommend cost-benefit or risk assessment models
for the evaluation of the impact of surface water quality standards on the
various elements of the environment, health and economy of Kansas,
including but not limited to human health, animal and plant species ac-
tually found or likely to be reintroduced in Kansas waters, industry, ag-
riculture and wastewater treatment;

(4) assess the probability that designated uses contained in the sur-
face water quality standards can be attained in a cost-effective and rea-
sonable manner when requirements are met;

(5) evaluate whether the 1994 surface water quality standards were

Ch. 148             1997 Session Laws of Kansas             871

adopted in full compliance with the requirements of Kansas law in effect
at the time of adoption of the standards and whether the estimates of
economic impact completed at the time accurately predicted the fiscal
impact of the standards on communities facing compliance with the stan-
dards in 1997 and 1998;

(6) advise the governor, legislature and secretary of any revisions to
the 1994 surface water quality standards that are justified based on ad-
ditional scientific and technical information and data;

(7) advise the governor, legislature and secretary whether the de-
partment's process of revising the 1994 surface water quality standards is
in full compliance with federal and state law;

(8) advise the governor, legislature and secretary regarding the extent
of the department's compliance with the provisions of 1996 House Res-
olution No. 6013, concerning consultation with community officials on
the impacts of the 1994 surface water quality standards on the commu-
nities of the state; and

(9) recommend the adoption of any procedures that the commission
deems advisable to ensure the collection and evaluation of scientific and
technical information necessary for the revision of the 1994 surface water
quality standards in future years.

(b) In completing its study, the commission shall evaluate and advise
the governor, legislature and secretary whether:

(1) There is reliable scientific documentation of the actual existence
of the species that are designed to be protected by the special aquatic
use designation contained in the 1994 surface water quality standards;
and

(2) the special aquatic use designation and reduced mixing zone
requirements contained in the 1994 surface water quality standards are
based on any recognized scientific data and models and whether there is
an established and clear relationship between the presence of the regu-
lated pollutants and the protection or restoration of the targeted aquatic
species.

(c) The commission shall consist of seven members appointed by the
governor. All members shall serve at the pleasure of the governor. The
term of office of such members shall commence at the time of appoint-
ment until July 1, 1998, or unless the commission or the appointment is
terminated by action of the governor on an earlier date. The chairperson
of the commission shall be appointed by the governor from among the
members of the commission. The staff of the department of health and
environment, the department of agriculture, the Kansas biological survey
and the department of wildlife and parks shall cooperate with and assist
the deliberations of the commission.

(d) Members of the commission shall have experience in one or more
of the following areas and disciplines: Environmental sciences; civil en-
gineering; business and industry; public finance; municipal wastewater

872             1997 Session Laws of Kansas             Ch. 148

treatment; agriculture or agribusiness; environmental law; public health
sciences; aquatic biology; risk assessment; and cost benefit analysis. At
least one member shall represent the general public. Except for faculty
members of universities under the supervision of the Kansas board of
regents, no state officer or employee shall serve on the commission.

(e) Before assuming office as a member of the commission, each per-
son appointed as a member shall complete and file with the office of the
secretary of state:

(1) A statement containing the information required in a statement
of substantial interests pursuant to K.S.A. 46-247 and amendments
thereto; and

(2) a list of citations of any publications written by the person.

(f) Within the limits of appropriations provided therefor, the com-
mission may retain such consultants and temporary staff as the commis-
sion deems necessary to complete the commission's investigations and
final report. The secretary of administration shall provide appropriate
space for the meetings of the commission. Each member of the commis-
sion shall receive compensation, subsistence, mileage and expenses as
provided by K.S.A. 75-3223 and amendments thereto.

(g) On or before January 1, 1998, the commission shall submit a pre-
liminary report to the governor and the legislature. The commission shall
submit a final report to the governor and the legislature on or before June
30, 1998. The department shall hold public hearings and accept public
comment on the commission's final report. After completion of the hear-
ings and receipt of the comments, the department shall develop and pub-
lish proposed rules and regulations on or before December 31, 1998, and
shall adopt rules and regulations in accordance with the rules and regu-
lations filing act. On and after July 1, 1999, all stream designations and
criteria contained in the 1994 surface water quality standards shall be in
full force and effect unless otherwise revised by rules and regulations
adopted by the secretary.

Sec. 4. This act shall take effect and be in force from and after its
publication in the Kansas register.

Approved April 24, 1997.

Published in the Kansas Register: May 1, 1997.