Approval Letter for Kansas-Lower

Republican TMDLs


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VII


901 NORTH 5TH STREET
KANSAS CITY, KANSAS 66101
January 26, 2000

Clyde D. Graeber, Secretary
Kansas Department of Health and Environment
400 S. W. 8th Avenue, Suite 200
Topeka, Kansas 66603

Dear Mr. Graeber:

RE: Kansas Natural Resource Council, Inc. and Sierra Club v.
United States Environmental Protection Agency and the State of Kansas
Civil Action No. 95-2490-JWL

This letter responds to the submittal from Kansas on April 28, 2000, of six Total Maximum Daily Loads (TMDLs) and the subsequent submittal on July 18, 2000, revisions to the six TMDLs, for impaired streams in the Kansas-Lower Republican Basin which were identified on the 1998 Kansas 303(d) list. The July 18 revisions were based upon comments from the Environmental Protection Agency (EPA) to the earlier submission. In addition to fulfilling the Clean Water Act (CWA) statutory requirement to develop TMDLs for those waters listed on a state's 303(d) list, the TMDLs submitted by Kansas were made pursuant to the Consent Decree entered on April 13, 1998 (modified January 31, 2000), by Judge Lungstrum in the above-referenced matter.

The April 28, 2000 submittal from Kansas included six ammonia TMDLs developed for the following water bodies:

  1. Kansas River Segment 10 at Topeka
  2. Kansas River Segment 21 at Lawrence
  3. Elk Creek Segment 29 at Holton
  4. Doyle Creek Segment 69 at St. Mary's
  5. Wakarusa River Segment 31 below Auburn
  6. Turkey Creek Segment 77 in Johnson County

Upon review by EPA, it was determined that these six TMDLs could not be approved under CWA 303(d) and implementing regulations at 40 C.F.R. 130.7. This was because Kansas developed the TMDLs using an endpoint other than the existing applicable state water quality standard for ammonia. Thereafter, Kansas reviewed these TMDLs and the status of National Pollutant Discharge Elimination System (NPDES) permit issuance and compliance on these six water bodies and determined that three of the water bodies do not require TMDLs for ammonia pursuant to Section 303(d) and EPA's regulations.

Kansas conducted additional analysis on a fourth water body, Turkey Creek, and the impact from the Nelson wastewater facility in Johnson County. Taking into account the ambient water quality data, Kansas determined the water body is in compliance with existing state water quality standards for ammonia and no TMDL is necessary.

It is EPA's understanding, based upon the rationale provided by Kansas in the July submission, that as a result of effluent limitations already in place, the following four water bodies will be (or already are) in compliance with the 1999 Kansas water quality standards for ammonia by the dates indicated:

  1. Kansas River Segment 21 at Lawrence
    • City of Lawrence - 2001
    • Farmland Industries - 2000
  2. Doyle Creek Segment 69 at St. Mary's - October 2002
  3. Wakarusa River Segment 31 below Auburn - January 2000
  4. Turkey Creek Segment 77 - in compliance

Kansas' determination not to develop TMDLs for the above four water bodies is consistent with paragraph 5 of the above referenced Consent Decree which reads:

"In fulfilling their obligations under this Consent Decree, Kansas is under no obligation to submit TMDLs to EPA nor is EPA under any obligation to establish TMDLs either (a) that are determined not to be needed consistent with Section 303(d) of the CWA and its implementing regulations, as either may be amended from time to time, including, but not limited to, 40 C.F.R. 130.7(b)(1), or (b) for WQLSs or pollutants that were on Kansas' 1996 Section 303(d) list but, consistent with the provisions of the CWA and its implementing regulations, were removed from any subsequent Kansas Section 303(d) list."

The July 18 submittal also provided revised TMDLs for the remaining two water bodies, Segment 10 of the Kansas River, and Segment 29 of Elk Creek. EPA has conducted its required review of the two revised TMDLs, and by this letter is approving the ammonia TMDLs. Enclosed with this letter are two Region 7 TMDL Review Forms which summarize the rationale for EPA's approval for each of these TMDLs. The EPA believes the separate elements of the TMDLs described in the enclosed forms adequately address impairment from ammonia, taking into consideration seasonal variation and a margin of safety.

EPA appreciates the effort that KDHE has put into developing these TMDLs and Kansas' conscientious determination to ensure that the modified Consent Decree requirements were met. EPA will continue to cooperate with and assist, as appropriate, in future efforts by Kansas to develop TMDLs and to implement final approved TMDLs. EPA continues to look forward to working with Kansas to develop and implement solutions to water quality problems in the State.


Sincerely,

U. Gale Hutton
Director
Water, Wetlands, and Pesticides Division

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VII


901 NORTH 5TH STREET
KANSAS CITY, KANSAS 66101
January 26, 2000

Clyde D. Graeber, Secretary
Kansas Department of Health and Environment
400 S. W. 8th Avenue, Suite 200
Topeka, Kansas 66603

Dear Mr. Graeber:

RE: Kansas Natural Resource Council, Inc. and Sierra Club v.
United States Environmental Protection Agency and the State of Kansas
Civil Action No. 95-2490-JWL

This letter responds to the submittal from Kansas on June 30, 1999, of 103 final Total Maximum Daily Loads (TMDLs) for impaired streams and lakes in the Kansas-Lower Republican (KLR) Basin identified on the1998 Kansas 303(d) list. In addition to fulfilling the Clean Water Act statutory requirement to develop TMDLs for those waters listed on a state's 303(d) list, this submittal was made pursuant to Paragraph 7 of the Consent Decree entered on April 13, 1998, by Judge Lungstrum in the above-referenced matter. Included with the Kansas submittal were TMDLs established by Kansas for several segments located in Indian Country. The purpose of this correspondence is to withdraw the previous letters dated August 9 and September 23, 1999, and re-approve the Kansas TMDLs in accordance with this letter and its enclosures. This re-approval allows EPA to update its Administrative Record for this action.

The Environmental Protection Agency (EPA) may not approve the development of TMDLs by Kansas for three stream segments in the KLR Basin that are located in Indian Country because the State has not demonstrated that it has jurisdiction within Indian Country to develop TMDLs nor to implement a State water quality standards program. We believe the TMDLs for Indian Country waters were inadvertently included in the State's 303(d) list of impaired waters in Kansas. The stream segments of concern are located on federal Indian reservation for two federally recognized tribes in Kansas: the Kickapoo Tribe and the Prairie Band of Potawatomi Indians. The TMDLs Kansas submitted that apply to Indian Country are identified as all those within the exterior boundaries of the Kickapoo Reservation including the fecal coliform bacteria TMDL for segments 22 and 23 of the Delaware River watershed above Perry Reservoir and all the TMDLs within the exterior boundaries of the Potawatomi Reservation including the fecal coliform bacteria, nutrients/BOD and sediment/biological TMDLs for segment 9 of Soldier Creek.

The EPA has conducted its required review of the TMDLs and supporting documentation and information, and by this letter is approving 100 TMDLs that are not located within the exterior boundaries of Indian Country. Enclosed with this letter are two enclosures: Attachment A identifies, by water body, all the EPA approved TMDLs in the KLR Basin, and, Attachment B consists of fifteen decision documents, in the form of checklists that provide a rationale for approving the KLR TMDLs. These decision documents are organized by pollutant and can be cross-referenced to specific water bodies in Attachment A. The EPA believes the separate elements of the TMDLS described in the enclosures adequately address the pollutants of concern, taking into consideration seasonal variation and margin of safety.

The EPA acknowledges that Kansas determined not to develop TMDLs for 3 pollutants discharged by point sources into 7 water bodies in the KLR Basin. Kansas has determined that other pollution control requirements are stringent enough to meet applicable water quality standards, consistent with 40 CFR 130.7(b)(1), therefore these 7 water bodies are not necessary on the 303(d) list requiring TMDLs. These 7 water bodies and associated pollutants are:

Water Body Name Segment Pollutant
Buffalo Creek 37 Ammonia
Salt Creek 23 Ammonia
Republican River below Milford 1 Fecal Coliform Bacteria, Ammonia
Doyle Creek 69 Fecal Coliform Bacteria
Cedar Creek 37 Dissolved Oxygen, Ammonia, Fecal Coliform Bacteria
Hog Creek 54 Ammonia
Banner Creek 45 Ammonia

Kansas' determination not to develop TMDLs for the above 7 water bodies is consistent with paragraph 5 of the above referenced Consent Decree which reads:

"In fulfilling their obligations under this Consent Decree, Kansas is under no obligation to establish TMDLs either (a) that are determined not to be needed consistent with Section 303(d) of the CWA and its implementing regulation, as either may be amended from time to time, including, but not limited to, 40 CFR 130.7(b)(1), or (b) for WQLSs or pollutants that were on Kansas' 1996 303(d) list but, consistent with provisions of the CWA and its implementing regulations, were removed from any subsequent 303(d) list."

It is also noted that for all final TMDLs with waste load allocations for fecal coliform bacteria, NPDES facilities must issue permit limits consistent with the TMDL that will meet water quality standards for fecal coliform bacteria at the end of pipe. This understanding resulted from discussions between our respective staffs regarding the document entitled, "Translation of Kansas Bacteria TMDL or Traditional TMDL" provided by Kansas to EPA on July 6, 1999.

EPA appreciates the thoughtful effort that Kansas has put into these TMDLs, and will continue to cooperate with and assist, as appropriate, in future efforts by Kansas to develop the remaining TMDLs and to implement these final approved TMDLs. The TMDLs that Kansas submitted are very good examples of State government working with full participation and coordination with other State Agencies, and meaningful public participation. EPA continues to look forward to working with Kansas to develop and implement solutions to water quality problems in the State.


Sincerely,

U. Gale Hutton
Director
Water, Wetlands, and Pesticides Division