Kan. Admin. Regs. § 28-16-28d

Current through Register Vol. 43, No. 24, June 13, 2024

Section 28-16-28d - Surface water classification and use designation

(a) Surface water classification. Surface waters shall be classified as follows:

(1) Classified stream segments shall be those stream segments defined in K.S.A. 2017 Supp. 82a-2001, and amendments thereto.

(2) Classified surface waters other than classified stream segments shall be defined as follows:

(A) Classified lakes shall be all lakes owned by federal, state, county, or municipal authorities and all privately owned lakes that serve as public drinking water supplies or that are open to the general public for primary or secondary contact recreation.

(B) Classified wetlands shall be the following:

(i) All wetlands owned by federal, state, county, or municipal authorities;

(ii) all privately owned wetlands open to the general public for hunting, trapping, or other forms of secondary contact recreation; and

(iii) all wetlands classified as outstanding national resource waters or exceptional state waters, or designated as special aquatic life use waters according to subsection (d).

Wetlands created for the purpose of wastewater treatment shall not be considered classified wetlands.

(C) Classified ponds shall be all ponds owned by federal, state, county, or municipal authorities and all privately owned ponds that impound water from a classified stream segment as defined in paragraph (a)(1).

(b) Designated uses of classified surface waters other than classified stream segments. The designated uses of classified surface waters other than classified stream segments shall be defined as follows:

(1) "Agricultural water supply use" means the use of classified surface waters other than classified stream segments for agricultural purposes, including the following:

(A) "Irrigation," which means the withdrawal of classified surface waters other than classified stream segments for application onto land; and

(B) "livestock watering," which means the provision of classified surface waters other than classified stream segments to livestock for consumption.

(2) "Aquatic life support use" means the use of classified surface waters other than classified stream segments for the maintenance of the ecological integrity of lakes, wetlands, and ponds, including the sustained growth and propagation of native aquatic life; naturalized, important, recreational aquatic life; and indigenous or migratory semiaquatic or terrestrial wildlife directly or indirectly dependent on classified surface waters other than classified stream segments for survival.

(A) "Special aquatic life use waters" means either classified surface waters other than classified stream segments that contain combinations of habitat types and indigenous biota not found commonly in the state or classified surface waters other than classified stream segments that contain representative populations of threatened or endangered species.

(B) "Expected aquatic life use waters" means classified surface waters other than classified stream segments containing habitat types and indigenous biota commonly found or expected in the state.

(C) "Restricted aquatic life use waters" means classified surface waters other than classified stream segments 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 use" means the use of classified surface waters other than classified stream segments, after appropriate treatment, for the production of potable water.

(4) "Food procurement use" means the use of classified surface waters other than classified stream segments for obtaining edible forms of aquatic or semiaquatic life for human consumption.

(5) "Groundwater recharge use" means the use of classified surface waters other than classified stream segments for replenishing fresh or usable groundwater resources. This use may involve the infiltration and percolation of classified surface waters other than classified stream segments through sediments and soils or the direct injection of classified surface waters other than classified stream segments into underground aquifers.

(6) "Industrial water supply use" means the use of classified surface waters other than classified stream segments for nonpotable purposes by industry, including withdrawals for cooling or process water.

(7) "Recreational use" means the use of classified surface waters other than classified stream segments for primary contact recreation or secondary contact recreation.

(A) "Primary contact recreational use for classified surface waters other than classified stream segments" means the use of classified surface waters other than classified stream segments for recreation on and after April 1 through October 31 of each year, during which a person is immersed to the extent that some inadvertent ingestion of water is probable. This use shall include boating, mussel harvesting, swimming, skin diving, waterskiing, and windsurfing.

(i) "Primary contact recreational use: swimming beach" shall apply to those classified surface waters other than classified stream segments that have posted public swimming areas. These waters shall present a risk of human illness that is no greater than 0.8 percent.

(ii) "Primary contact recreational use: public access" shall apply to those classified surface waters other than classified stream segments where full body contact can occur and that are, by law or written permission of the landowner, open to and accessible by the public. These waters shall present a risk of human illness that is no greater than 1.0 percent.

(iii) "Primary contact recreational use: restricted access" shall apply to those classified surface waters other than classified stream segments where full body contact can occur and that are not open to and accessible by the public under Kansas law. These waters shall present a risk of human illness that is no greater than 1.2 percent.

(B) "Secondary contact recreational use for classified surface waters other than classified stream segments" means recreation during which the ingestion of classified surface waters other than classified stream segments is not probable. This use shall include wading, fishing, trapping, and hunting.

(i) "Secondary contact recreational use: public access" shall apply to classified surface waters other than classified stream segments where the surface water is, by law or written permission of the landowner, open to and accessible by the public.

(ii) "Secondary contact recreational use: restricted access" shall apply to classified surface waters other than classified stream segments where the surface water is not open to and accessible by the public under Kansas law.

(c) Designated uses of classified stream segments. The designated uses of classified stream segments shall be those defined in K.S.A. 2017 Supp. 82a-2001, and amendments thereto.

(d) Assignment of uses to surface waters.

(1)

(A) Classified surface waters shall be designated for uses based upon the results of use attainability analyses conducted in accordance with K.S.A. 2017 Supp. 82a-2005, and amendments thereto. The provisions of the federal water quality standards regulation, 40 C.F.R. 131.10(g), as adopted by reference in paragraph (d)(1)(B), shall be followed.

(B)40 C.F.R. 131.10(g), dated July 1, 2016, is hereby adopted by reference, except that the phrase "federal clean water" shall be inserted before the word "act."

(2) Classified surface waters and their designated uses shall be identified and listed in the "Kansas surface water register," as adopted by reference in K.A.R. 28-16-28g.

(3) The use designations for classified streams, lakes, wetlands, and ponds not listed in the surface water register shall be determined by the secretary on a case-by-case basis in accordance with paragraph (d)(1).

Kan. Admin. Regs. § 28-16-28d

Authorized by K.S.A. 2017 Supp. 65-171d, 82a-2005, and 82a-2010; implementing K.S.A. 2017 Supp. 65-171d, 82a-2002, 82a-2003, 82a-2004, and 82a-2005; effective May 1, 1986; amended, T-87-8, May 1, 1986; amended May 1, 1987; amended Aug. 29, 1994; amended July 30, 1999; amended Aug. 31, 2001; amended Jan. 3, 2003; amended Jan. 23, 2004; amended Jan. 28, 2005; amended March 20, 2015; amended by Kansas Register Volume 37, No. 06; effective 2/23/2018.