Approval Letter for the Missouri and
Marais des Cygnes Rivers Basins

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VII
901 NORTH 5TH STREET
KANSAS CITY, KANSAS 66101
Aug. 28, 2001

Mr. 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
Civil Action No. 95-2490-JWL

This letter responds to the submission from Kansas dated June 28, 2001, of 48 Total Maximum Daily Loads (TMDLs) for water bodies located in the Missouri and Marais Des Cygnes Basins, which were identified on the 1998 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 submission was made pursuant to Paragraph 7 of the Consent Decree entered on April 13, 1998. The Environmental Protection Agency (EPA) received 48 final TMDLs on June 28, 2001, 12 revised final TMDLs on August 2, 2001, and eight revised final TMDLs on August 3, 2001.

In the June 28 submission letter, Kansas determined that eleven impaired water body segments identified on the Kansas 1998 §303(d) list as point source impairments did not require TMDLs. Kansas ensures that NPDES permits for those facilities, identified as the sole contributor of the pollutant impairment on the water body, have been reissued either new permit limits for the pollutant of concern, or, compliance schedules which will bring the water body into attainment with water quality standards (WQS). It is EPA's understanding, based upon the information provided by Kansas in the June 28 letter, that as a result of effluent limitations already in place, the following eleven water body segments will be (or already are) in compliance with the 1999 Kansas WQS for the pollutant and by the dates indicated:

1. Wolf River & North Fork, segments 56 & 66 - ammonia & dissolved oxygen - June, 2005.
2. South Fork Big Nemaha, segment 15 - dissolved oxygen - December, 2003.
3. Whiskey Creek, segment 235 - ammonia - July, 2001.
4. Marais Des Cygnes, segment 12 - ammonia - February, 2003.
5. Walnut Creek, segment 90 - ammonia - July, 2003.
6. Pottawatomie Creek & South Fork, segments 56 & 67 - fecal coliform bacteria - July 2001.
7. Salt Creek, segment 29 - ammonia & fecal coliform bacteria - July, 2004.
8. East Fork Tauy Creek, segment 85 - fecal coliform bacteria - October, 1999.
9. Marmaton River, segment 7 - ammonia & fecal coliform bacteria - February, 2003.

Also in the June 28 letter, Kansas indicated a TMDL would not be developed for Tomahawk Creek. The 1998 §303(d) list identifies segment 53 of Tomahawk Creek as impaired by ammonia, as determined through predictive modeling based on the Tomahawk Creek WWTP. However, the June 28 letter indicates that there are no wastewater treatment plants located on Tomahawk Creek. The receiving stream for the Tomahawk Creek WWTP discharge is actually Indian Creek, which is immediately parallel to Tomahawk Creek in the same sub-basin (Missouri-Crooked sub-basin) of the Missouri Basin. No further information was provided in the June 28 letter. EPA requested and received information from Kansas for two facilities potentially impacting water quality in Indian Creek due to ammonia; Tomahawk Creek Middle Basin WWTP and Tomahawk Creek WWTP.

It is EPA's understanding that Kansas reissued NPDES permits for these two facilities in July, 2001, with water quality-based ammonia limits. Also, instream water quality data, received from Kansas on August 14, 2001, indicates that ambient concentrations of ammonia in Indian Creek below these two facilities are not in violation of the Kansas WQS for ammonia. EPA is retaining this data and information in the record for the Missouri Basin TMDLs.

Although Tomahawk Creek was incorrectly identified as the receiving stream for the Tomahawk Creek WWTP, this would not preclude Kansas from developing a TMDL for the correct receiving stream, if a facility's discharge is identified as having the potential to violate WQS. In this case, the information and data provided by Kansas on August 14 supports the position that an ammonia TMDL does not need to be developed for Indian Creek.

Kansas' determination not to develop TMDLs for the above twelve water body segments is consistent with paragraph five 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."

EPA has completed its review of the TMDLs with supporting documentation and information. By this letter EPA approves the submitted 48 TMDLs. Enclosed with this letter are Region 7 TMDL Review Forms which summarize the rationale for EPA's approval of each of these 48 TMDLs. EPA believes the separate elements of the TMDLs described in the enclosed forms adequately address the pollutants of concern, taking into consideration seasonal variation and a margin of safety. It is also noteworthy that Kansas has submitted these TMDLs for the Missouri and Marais Des Cygnes Basins ahead of the schedule set in the Consent Decree.

EPA is currently engaged in consultation under Section 7 of the Endangered Species Act with the U.S. Fish and Wildlife Service regarding these TMDLs. While EPA is approving these TMDLs at the present time, EPA may decide that changes to the TMDLs are warranted based upon the results of the consultation when it is completed.

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 TMDLs.