Statutory Context

Introduction

The Clean Water Act provides the overriding federal mandate and statutory context for state water quality monitoring and assessment programs. Pursuant to this law, all states are required to monitor the physical, chemical and biological condition of their surface water resources and strongly encouraged to monitor groundwater quality. States also are required to update water quality information annually, to comprehensively report on water quality conditions on a biennial basis, to develop and maintain a list and priority ranking of water quality-limited surface waters, and to report each year on improvements in water quality resulting from nonpoint source pollution control efforts. The Clean Water Act prohibits the transfer of certain federal funds to any state failing to comply with these basic monitoring and reporting requirements.

In Kansas, water quality monitoring and assessment responsibilities rest primarily with the Kansas Department of Health and Environment (KDHE). State law compels the department to “investigate and report upon all matters relating to water supply and sewerage and the pollution of the waters of the state” (Kansas Statutes Annotated (K.S.A.) 65-170). Waters of the state are legally defined as “all streams and springs and all bodies of surface and subsurface water within the boundaries of the state” (K.S.A. 65-161(a)). Water pollution is defined, in part, as “contamination or other alteration of the physical, chemical or biological properties of any waters of the state...likely to create a nuisance or render such waters harmful, detrimental or injurious to public health, safety or welfare, or to the plant, animal or aquatic life of the state or to other designated beneficial uses” (K.S.A. 65-171d(c)).

Summaries of Major Federal and State Statutes and Regulations
Addressing Water Quality Monitoring and Assessment

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Clean Water Act

The Environmental Protection Agency maintains a website explaining history and provisions of the Clean Water Act

Section 104(a): The [EPA] Administrator shall establish national programs for the prevention, reduction, and elimination of pollution and as part of such programs shall...in cooperation with the States, and their political subdivisions, and other Federal agencies establish, equip, and maintain a water quality surveillance system for the purpose of monitoring the quality of the navigable waters and ground waters....

Section 106(e): [The] Administrator shall not make any grant under this section to any State which has not provided or is not carrying out as part of its program...the establishment and operation of appropriate devices, methods, and procedures necessary to monitor, and to compile and analyze data on (including classification according to eutrophic condition), the quality of navigable waters and to the extent practicable, ground waters including biological monitoring; and provision for annually updating such data and including it in the report required under section 305 of this Act....

Section 303(d): Each State shall identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B) are not stringent enough to implement any water quality standard applicable to such waters. The State shall establish a priority ranking for such waters, taking into account the severity of the pollution and the uses to be made of such waters.

Section 305(b): Each State shall prepare and submit to the Administrator...a [biennial] report which shall include...(A) a description of the water quality of all navigable waters in such State...; (B) an analysis of the extent to which all navigable waters of such State provide for the protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the water; (C) an analysis of the extent to which the elimination of the discharge of pollutants and a level of water quality which provides for the protection and propagation of a balanced population of shellfish, fish, and wildlife and allows for recreational activities in and on the water, have been or will be achieved by the requirements of this Act, together with recommendations as to the additional action necessary to achieve such objectives and for what waters such additional action is necessary...; (E) a description of the nature and extent of nonpoint sources of pollutants, and recommendations as to the programs which must be undertaken to control each category of such sources....

Section 314(a): Each State on a biennial basis shall prepare and submit to the Administrator for his approval...an identification and classification according to eutrophic condition of all publicly owned lakes in such State...[and] an assessment of the status and trends of water quality in lakes in such State, including but not limited to, the nature and extent of pollution loading from point and nonpoint sources and the extent to which the use of lakes is impaired as a result of such pollution, particularly with respect to toxic pollution.

Section 319(h): Each State shall report to the Administrator on an annual basis concerning...to the extent that appropriate information is available, reductions in nonpoint source pollution loading and improvements in water quality for those navigable waters or watersheds within the State...resulting from implementation of the [nonpoint source pollution control] program.

Code of Federal Regulations

40 CFR 35.168(a): The Regional Administrator may award section 106 funds to a State only if...the State monitors and compiles, analyzes, and reports water quality data as described in section 106(e)(1) of the Clean Water Act....

40 CFR 123.26(b): State programs shall have inspection and surveillance procedures to determine, independent of information supplied by regulated persons, compliance or noncompliance with applicable program requirements. The State shall maintain...a program for periodic inspections of the facilities and activities subject to regulation. These inspections shall be conducted in a manner designed to:

  • Determine compliance or noncompliance with issued permit conditions and other program requirements;
  • Verify the accuracy of information submitted by permittees and other regulated persons in reporting forms and other forms supplying monitoring data; and
  • Verify the adequacy of sampling, monitoring, and other methods used by permittees and other regulated persons to develop that information....

40 CFR 130.4(a): In accordance with section 106(e)(1), States must establish appropriate monitoring methods and procedures (including biological monitoring) necessary to compile and analyze data on the quality of the waters of the United States and, to the extent practicable, ground-waters....

40 CFR 130.4(b): The State’s water monitoring program shall include collection and analysis of physical, chemical and biological data and quality assurance and control programs to assure scientifically valid data. The uses of these data include determining abatement and control priorities; developing and reviewing water quality standards, total maximum daily loads, wasteload allocations and load allocations; assessing compliance with National Pollutant Discharge Elimination System (NPDES) permits by dischargers; reporting information to the public through the section 305(b) report and reviewing site-specific monitoring efforts.

40 CFR 130.6(c)(9): Identification and development of programs for control of ground-water pollution including the provisions of section 208(b)(2)(K) of the Act. States are not required to develop ground-water WQM plan elements beyond the requirements of section 208(b)(2)(K) of the Act, but may develop a ground-water plan element if they determine it is necessary to address a ground-water quality problem. If a State chooses to develop a ground-water plan element, it should describe the essentials of a State program...[including] monitoring and resource assessment programs in accordance with section 106(e)(1) of the Act.

Kansas Statutes Annotated

Complete text of Kansas Statutes Annotated are available on the website of the Kansas Legislature: http://www.kslegislature.org/.

K.S.A. 65-161a: “Waters of the state” means all streams and springs, and all bodies of surface and subsurface water within the boundaries of the state....

K.S.A. 65-170: For the purpose of carrying out the provisions of this act it shall be the duty of the director of the division of environment to investigate and report upon all matters relating to water supply and sewerage and the pollution of the waters of the state that may come before the secretary of health and environment for investigation or action, and to make such recommendations in relation thereto as the director may deem wise and proper, and to make such special investigations in relation to methods of sewage disposal and public water supply and the purification of water as may be necessary in order to make proper recommendations in regard thereto, or as may be required by the secretary of health and environment.

K.S.A. 65-170b: In performing investigations or administrative functions relating to water pollution or a public water supply system...the secretary of health and environment or the secretary’s duly authorized representatives upon presenting appropriate credentials, may enter any property or facility which is subject to the provisions of [this act], or any amendments thereto, for the purpose of observing, monitoring, collecting samples, examining records and facilities to determine compliance or noncompliance with state laws and rules and regulations relating to water pollution or public water supply.

The secretary of health and environment or the secretary’s duly authorized representative shall make such requirements as they deem necessary relating to the inspection, monitoring, recording, and reporting by any holder of a sewage discharge permit...or any holder of a public water supply system permit....

K.S.A. 65-171a: The authority of the secretary of health and environment in matters of stream pollution is hereby supplemented to include stream pollution found to be detrimental to public health or detrimental to the animal or aquatic life of the state.

K.S.A. 65-171d(c): For the purposes of this act...and any amendments thereto, pollution means: (1) Such contamination or other alteration of the physical, chemical or biological properties of any waters of the state as will or is likely to create a nuisance or render such waters harmful, detrimental or injurious to public health, safety or welfare, or to the plant, animal or aquatic life of the state or to other designated beneficial uses; or (2) such discharge as will or is likely to exceed state effluent standards predicated upon technologically based effluent limitations.