Kan. Admin. Regs. § 28-16-28f - Administration of surface water quality standards

(a) Application of modified surface water quality standards. A modification to the surface water quality standards or the surface water register, or both, shall have no effect on the requirements of any existing enforceable discharge permit issued under K.S.A. 65165, and amendments thereto, unless the discharge fails to meet the requirements of the permit or the secretary determines that continuation of the discharge will result in a potential or actual public health hazard or in irreversible water use impairments.

(b) Water quality certification. No action identified in this subsection shall be taken unless the department has issued a water quality certification for the following:

(1) Any action requiring a federal license or permit pursuant to the federal clean water act;

(2) any action subject to the permitting provisions of K.S.A. 65-165, and amendments thereto;

(3) any water development project subject to the water projects environmental coordination act, K.S.A. 82a-325 et seq., and amendments thereto; and

(4) any action undertaken by any Kansas state agency that has a potential water quality impact.

(c) Compliance schedules.

(1) Except as provided in paragraph (c)(2), compliance schedules contained in any discharge permit or license issued by the department pursuant to the federal clean water act or K.S.A. 65-165, and amendments thereto, shall not extend more than five years beyond the date of permit issuance.

(2) Compliance schedules extending past the date of permit expiration may be granted if it is demonstrated that the strict application of paragraph (c)(1) is not feasible due to construction scheduling constraints or other technical limitations.

(d) Variances.

(1) A variance establishing an interim designated use and interim criterion may be permitted and adopted into this article of the department's regulations at the next systematic review or subsequent triennial review and after a public hearing consistent with 40 C.F.R. 131.20(b), as in effect on July 1, 2016, if upon written request by any person, as defined in K.S.A. 65-170a and amendments thereto, the secretary finds that the attainment of the designated use and criterion is not feasible because one of the following conditions is met:

(A) One of the factors listed in 40 C.F.R. 131.10(g), as adopted by reference in K.A.R. 28-16-28d, exists.

(B) Actions necessary to facilitate lake, wetland, or stream restoration through dam removal or other significant reconfiguration activities preclude attainment of the designated use and criterion while the actions are being implemented.

(2) Each variance shall be issued and evaluated using methods outlined in the "Kansas implementation procedures: surface water quality standards," as adopted in K.A.R. 28-16-28b.

(3) Adoption and implementation of each variance shall be in accordance with 40 C.F.R. 131.14, as in effect on July 1, 2016 and hereby adopted by reference, except that 131.14(a)(2), 131.14(a)(4), 131.14(b)(1)(ii), and 131.14(b)(2)(i)(A) shall be excluded.

(4) Each variance shall have a designated term limit and reflect the highest attainable condition during the specified term. A variance may be applied to individual or multiple dischargers or surface water bodies.

(5) Each variance shall have requirements and a time limitation demonstrating the intent that progress be made toward the attainment of the underlying designated use and criterion.

(A) Each requirement shall be designed to achieve the highest attainable condition of the surface water segment applicable throughout the term of the variance. A specified requirement shall not result in lowering the currently attained ambient water quality, unless a variance is necessary for physical reconfiguration activities intended for surface water segment restoration. The highest attainable condition of each affected surface water segment as a quantifiable expression shall be specified as one of the following:

(i) The highest attainable interim criterion;

(ii) the interim effluent condition that reflects the greatest pollutant reduction achievable; or

(iii) the interim criterion or effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the variance is adopted.

(B) If the quantifiable expression identified in paragraph (d)(5)(A)(iii) is selected, a pollutant minimization plan shall be adopted and implemented by the discharger if no additional feasible pollutant control technology is identified.

(6) Each Kansas surface water quality standard not specifically addressed in a variance shall remain applicable.

(7) Each person requesting a variance shall provide evidence that a designated use and criterion, or a designated use or criterion, addressed by the variance cannot be achieved solely by the implementation of technology based effluent limits.

(8) Each variance request shall include supporting documentation that demonstrates all of the following:

(A) Attaining the designated use and criterion is not feasible throughout the term of the variance because of one of the factors cited in paragraphs (d)(1)(A) and (B).

(B) The term of the variance is only as long as necessary to achieve the highest attainable condition.

(C) The highest attainable condition of the affected surface water segment is as defined in paragraph (d)(5)(A).

(9) A discharger that impacts water quality shall not be granted a variance from requirements of K.A.R. 28-16-28c or 28-16-28e.

(10) Specific eligibility requirements may be included in a multiple-discharger variance as an alternative to identifying the specific dischargers at the time of adoption of the variance. Each discharger shall meet the eligibility requirements in the applicable section of the "Kansas surface water quality standards variance register," as adopted by reference in K.A.R. 28-16-28h, to participate in a multiple-discharger variance.

(e) Site-specific criteria. Site-specific criteria shall be established using the methods outlined in the "Kansas implementation procedures: surface water quality standards," as adopted by reference in K.A.R. 28-16-28b.

(f) Enforcement. Each person deemed by the department to be responsible for a violation of the Kansas surface water quality standards caused by an artificial source shall be required by the department to initiate corrective actions that restore the designated uses of the affected surface water or surface water segment impaired by the violation and provide for the return of the original surface water quality conditions.

Notes

Kan. Admin. Regs. § 28-16-28f

Authorized by K.S.A. 65-171d and 65-171m; implementing K.S.A. 65-164, 65-171d, and 65-171m; effective May 1, 1986; amended Aug. 29, 1994; amended July 30, 1999; amended Jan. 28, 2005; amended March 20, 2015; amended Feb. 23, 2018; amended by Kansas Register Volume 41, No. 10; effective 3/25/2022.