Current through Register Vol. 43, No. 39, September 26, 2024
(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.
