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Lawsuits center on the question: Just what is a Kansas stream?

by Scott Hoober, Ellen Miller Group

Since initial passage of the Clean Water Act more than 30 years ago, Americans have become accustomed to cleaner and cleaner water, and with good reason. The water in streams all across the nation is indeed cleaner than it used to be - good news for the roughly 100% of us who live downstream from someone else.

Yet sources of pollution, particularly non-point-source pollution, remain. And here in Kansas, where one of the biggest remaining sources of water pollution is and has been agriculture, the widespread national consensus that we deserve clean water seems in some ways to be unraveling.

At the national level, where the Republicans are a slim majority in Congress, the administration has been loathe to take on the 75% of Americans who say they care for the environment, at least not head-on.

In Topeka, the Legislature has shown no such hesitancy. Despite overwhelming Republican majorities in both houses and the partisan nature of the fight at the national level, it's been a bipartisan effort, with two Democratic senators leading the charge to alter water regulation and others in their party meekly going along. Most everyone has no doubt heard snippets about the ongoing dispute in the press, or in conversations over coffee. Farmers and ranchers vs. urban dwellers. States' rights. The Legislature usurping the prerogatives of the Kansas Department of Health and Environment (KDHE) and the EPA. Lawsuits, and then more lawsuits. What's going on here?

Well, as with many things, it depends on who you talk to.

It's either ag interests, fearing the cost of new, stricter TMDLs (regulations governing total maximum daily loads of pollutants in streams) and the impending loss of political clout in Topeka, trying to delay further implementation of the Clean Water Act. Or it's pointy-headed bureaucrats striving to impose onerous rules on the hard-working residents of the western half of the state. Or it's a pusillanimous EPA wary of pushing too hard to make Kansas comply with the law, and brave environmentalists suing - successfully - to keep their feet to the fire.

Or maybe, just maybe, it's a little of each.

We talked with people on all sides of the issue - Charles Benjamin, one of those changing water regulation via lawsuits against EPA on behalf of the Sierra Club and the Kansas Natural Resources Council; Senator Janis Lee, D-Kensington, a major player in the Legislature when it comes to water issues; and Karl Mueldener, P.E., director of KDHE's Bureau of Water. Here's what they had to say.

Winning on procedural grounds

As the Sierra Club's lobbyist, you'd expect Charles Benjamin to be a staunch supporter of the Clean Water Act.

He's certainly become the bogeyman for those who oppose the ever-tightening web of clean water regulations. But it's probably not just because of the lawsuits he's helped file in federal court. No, it's because he hasn't lost a lawsuit yet.

"We cannot sue the state of Kansas because of the 11th amendment to the Constitution," Benjamin explains.

"We can only sue the EPA. And there's a provision in the Clean Water Act that Congress put in there, the Citizen Suit Provision, that allows citizens to go to court, to go to a federal judge, and to get the judge to order EPA to carry out what's called its nondiscretionary duty.

"Not only that," he said, "but if we prevail, or substantially prevail, then the government pays our attorneys' fees."

And sure enough, once again the 10th Circuit agreed with Sierra Club and KNRC. The court basically ordered EPA not to allow the state to handle classification of streams as it had planned to, but as the Clean Water Act specifies. Sounds like a fairly technical little sideline to water protection, right? That's the nature of such suits: forcing EPA to force state compliance over some small procedural issue. But the sum of these successful suits gives Benjamin reason for feeling victorious - as long as he keeps winning these moral victories:

Over the long haul, though, Benjamin has had genuine impact on the regulation of clean water.

"Let's go back to 1994, when KDHE submitted proposed new water quality standards for the state of Kansas," he said.

When EPA finally got around to reviewing them, almost four years later, the state was out of compliance in a dozen different areas. KDHE cured six of those but left Kansas still out of compliance with the others -- including a biggie: setting the designation for 1,456 streams, ponds, lakes or stream segments, what are known as "water bodies," as suitable for secondary-contact recreation.

Trouble is, as EPA told them, states are required to make a "rebuttable presumption" of primary contact, things like fishing and swimming, until they can get around to performing and then submitting use-attainability analyses (UAAs) to rebut the presumption: to justify lowering the designation.

"KDHE didn't do it, and the timeline ran out," Benjamin said. "So EPA and the state came to an agreement called a Memorandum of Understanding in March 2001, the same time as Senate Bill 204 was making its way through the Legislature. And in that Memorandum of Understanding, the state of Kansas agreed to comply with all areas remaining in terms of where Kansas and EPA were in disagreement - except that the EPA allowed the state to keep those 1,456 water bodies as secondary-contact recreation while the use-attainability analysis was being done."

In the meantime, the Legislature decided to write its water regs, which ended up being known as Senate Bill 2219, doing what Benjamin characterizes an end run in order to weaken water-quality standards.

He charges that the ag industry was essentially writing new water quality standards, submitting them to the Senate Natural Resource Committee, which tweaked them, passed them, then sent them along to the House.

The one hearing was called on short notice and poorly attended, and only ag lobbyists and senators had copies of the bill anyway. Following approval it went to a conference committee and became law.

Sounds like a frustrating exercise, winning in court but losing over and over again in other forums. What would Benjamin consider success?

"I think success is carrying out the Clean Water Act after 30 years," he said. "Absolutely all we're doing is trying to get the Clean Water Act fully implemented in the state of Kansas.

"You have to remember that TMDLs weren't set until Sierra Club and KNRC went to court in 1995. The Clean Water Act had been in existence by then for 23 years -- and not a single TMDL had been set. We had to go to court to get that done.

"A lot of things are up in the air," he added. "All that we can do is continue to go to court to force EPA to carry out the Clean Water Act.

"It's pretty clear that we're not going to influence the Legislature to stop doing this. We're not going to influence the governor to veto these bills. So our only recourse is to use the tools that Congress gave us, which is going to federal court and getting a judge to order the EPA to carry out the Clean Water Act.

"I can say it until I'm blue in the face, but I don't wear a black robe to work," Benjamin said. "But when a judge says it, it has some effect."

"Strong guidance"

One of the leaders of the move to pass Senate Bill 204 in '01 and 2219 this year is Senator Janice Lee, one of those western senators - a cattle rancher from near Kensington, in the north-central part of the state.

It will not come as much of a surprise that she sees the dispute a little differently. Basically, she feels that the process has been going along pretty well, with a few minor technical glitches in the form of those court decisions. And now that water regs are part of the statutes of the state of Kansas, things will go even more smoothly.

Although EPA isn't fond of the idea of legislators behaving like regulators, Sen. Lee says it was necessary.

"If a bureaucratic body decides to change a rule or reg, they can do that without budget approval," she said. "We can advise on the rule and reg process, but we cannot demand. And so they can interpret legislative intent however they want to.

"If they make an interpretation in rules and regs without legislative authority, then the only way we can change that is by changing the statute."

Ordinarily, of course, that's the way government works: Elected legislators establish policy, then they allow administrative departments to implement them. Even in the corporate world, the board of directors doesn't normally micromanage -- slap down the folks delegated to handle day-to-day operations and tell them exactly what to do and how to do it.

"I don't think KDHE was slapped down," Sen. Lee said. "I consider it guidance, strong guidance.

"Our feeling was that legislators ultimately are the ones who set the laws of the state, and we thought it was important to have those laws in a form that would allow us to have the ability to oversee what was being done."

Lee and her colleagues have taken a strong role, meeting with staffers at the U.S. Geological Survey's Lawrence office to learn more about designating streams, and with officials from EPA Region VII to see what would need to be in legislation so it would pass muster with them.

At bottom, Lee feels it's laughable to have more than a handful of stream segments in the western part of the state be listed as fishable and swimmable. And if they didn't get their designations under the Clean Water Act dropped down a notch or two, the cost of complying would put many farmers and ranchers out of business.

"Farmers were going to have to fence off thousands of miles of nonexistent streams in order to be able to do what EPA wanted, if you wanted to have every one of those fishable/swim able," she said.

"What was funny to most westerners -- ludicrous to most western Kansas people -- was that you couldn't wade in them, much less swim, because there wasn't any water in them 90% of the time. A lot of the areas that they had classified as primary are actually gullies or ditches in the earth that water runs in only when you get a 5-inch rain."

The problem is that the EPA map KDHE first used to establish stream segments was based on topography alone. That EPA map was based on generations of maps originally produced by USGS.

"If you really want to look at flow, you have to look not only at topography, but at the rainfall," Lee said. "A ditch in western Kansas, where you get 15 inches of rain - the amount of water that runs down that on a regular basis is very different from the same topographical feature in eastern Kansas, which gets 30 or 40 inches of rain a year."

The real issue is TMDLs, those ever-tightening limits on what and how much may be dumped into streams. Some rural practices, such as wintering cattle in a creek bottom, are certainly inappropriate, Lee said, but for the most part, farming and ranching simply aren't responsible for much pollution - or at least not much that reaches very far downstream.

You don't get much bang for your buck, she said, forcing ranchers to fence off "thousands of miles of nonexistent streams," as she put it.

"The amount of potential pollution that you may or may not stop is so insignificant compared to the cost to the landowner that it just should not even be a part of the discussion," said Lee.

"If you have one cow for every 10 acres, which is common, the number of times that a cow might step in a creek and crap is pretty insignificant," she added, "and it's not something that is worth anybody's attention in terms of potential pollution.

"You'd better be more concerned with the number of geese that fly and land on one of our reservoirs. The pollution from that is much greater than in a pasture where you have one cow per seven acres."

It's hard for rural folks to make a living in the best of times, she said, "and having the extra expense of not only having to put up that fence but trying to maintain that fence . . . it all becomes incredibly expensive."

The legislation now in place, Lee says, is what's needed to "give guidance to the TMDL process," to prevent harmful practices without going overboard.

"I consider this legislation as putting the kind of framework in place that will allow for the more appropriate application of TMDLs, and will help us look at those areas where there truly is potential for pollution, as opposed to simply micro- managing every square foot across the state."

Man in the middle

When a federal judge tells the state of Kansas, through EPA, that it needs to change the way it enforces the Clean Water Act, the Kansas Department of Health and Environment gets the job of going out and doing it. And when the Legislature takes it on itself to pass laws changing water regulation, once again, it's KDHE that gets its hands dirty.

One of the people in the middle is Karl Mueldener, P.E., director of the agency's Bureau of Water Protection. He makes a good case that KDHE has been no slouch.

"Frankly, if you looked at how other states have handled classification for recreation purposes, and what criteria they applied, if you applied what we were doing to other states, we were being darn strict."

Despite that little misunderstanding about whether and how to designate streams for primary- or secondary-contact recreation, Mueldener says his people have been aggressive in protecting even the streams designated secondary.

"Part of the reason we had that secondary was that we knew that most of the streams in the state don't lend themselves easily to what I think you and I would think of as swimming," he said.

"And that's especially true in the mid to western part of the state, where streams tend to be smaller. We thought we had a really good approach here, and we were protecting them from secondary, which is not to exceed 2,000 bacteria/ml, which is a tough number.

Then, when we had primary recreational contact, like in a lake or some specific location on a stream, we applied the primary, and that number was a geometric mean of 200 bacteria/ml."

Some of the specific criteria can be a little confusing (see information on opposite page). For instance, since 2,000 bacteria/100 ml is a maximum level of fecal coliform and the 200 bacteria/100 ml applied to primary contact is a geometric mean, not a maximum, the jump in bacteria levels isn't 10 to 1, it's more like 2 to 1.

That's where professionals like Mueldener come in. He can look up the data and translate a geometric mean of to 200 to a maximum of about 900.

He and his colleagues are also good at jumping through the hoops that the politicians on occasion put in his way. (No, he didn't say that. We did. Mueldener understands that the Legislature writes the laws and KDHE enforces them.)

Since May 1, the old primary vs. secondary is out the window. The new rules, promulgated by the Legislature, establish five categories: primary A, B and C, and secondary A and B. Two categories, five categories -- either one fits with the Clean Water Act. "EPA just gives you these guidelines, within which states can set their own uses," Mueldener said. "It's not like the Safe Drinking Water Act, where the law says the nitrate standard shall be such and such. In this case they're saying, Here's some guidance on bacteria standards. Follow this guidance and set up a system that you think works," complete with testing.

"The Legislature didn't want to take a chance on what we might do, so they just did it. The law really looks like what regulations generally are," he said. "The Legislature not only set the primary A, B and C, but they also told me what risk factors to assign."

Ultimately, the standards for E. coli in streams come down to risk factors, and the mandated risk for folks taking a dip in a primary A stream is 8 illnesses per 1,000 swimmers - what the limit was for the old primary. But primary A consists of only those few places on streams that are designated as public swimming areas.

Primary B, which will likely end up including much of what used to be primary, applies to areas that could be swum in - e.g., the water is deep enough - and that you could get to legally. Primary C refers to streams that can be swum in, but if you jumped in, you'd be trespassing.

"The Legislature has had a concern over public access and accessibility," said Mueldener. So when his people go out and do a UAA, a use-attainability analysis, they take water samples and they physically look at the stream, the same as always, but they also take a look at just how accessible that stream or stream segment might be.

Those UAAs are going on at a pretty rapid pace in response to one of the lawsuits filed by environmental groups. (EPA has even decided to conduct some itself). Under the Clean Water Act, they're required before a stream can be declared anything but primary. Of the 1,456 streams, stream segments and lakes in the state considered classifiable, approximately half have had UAAs conducted over the past couple of years.

Another point of controversy is the definition of an intermittent stream.

In what appears to be a teensy mistake, some gullies that could carry water were at one point classified as a stream. While some of those areas really don't need to be protected as stringently as a full-fledged stream, there's a whole lot of pressure to toss them all out of the system, affording them – and us, downstream – none of the protections of the Clean Water Act.

Once again, EPA provides only modest guidance. Sure, the 10th Circuit has upheld the basic concept – yes, intermittent streams must be protected – but there's still a question of which of them come up to the standards of even an intermittent stream. The question remains what it has been for some time: What is a stream?

"Senate Bill 204 in 2001 set up a different approach to defining what is and is not a stream in Kansas," Mueldener said. "What the Legislature did was essentially say, Look, KDHE, we think you're being stricter than you need to be with applying these strict standards to small streams.

"As a matter of fact, here are some streams that don't even have water in them, and you've got them listed as a stream. How silly is that? Well, there is a certain silliness in that."

Even road maps sometimes show a blue line, but if you parked and took a look, there might well not be any water there. At least most of the time.

So the Legislature has redefined how much water must be in a stream before it's considered an intermittent stream. The old standard was 0.1 cubic foot per second, while the new standard is 1 cfs, leading to the immediate conclusion that it's now 10 times as hard for a small stream to make the grade.

Not so fast. Once again, as in maximum vs. mean, we're talking two different kinds of numbers here. The old limit was 0.1 cfs in mean summer base flow, which turns out to be a hard number to come up, or to compare to what others are using. The 1 cfs figure is 10-year median flow: measurable, comparable, better all around. So there's no controversy around intermittent streams, right?

Sure, the new rules allow for some exceptions, such as a stream segment that comes in under 1cfs but harbors threatened or endangered aquatic species. Or if a wastewater facility discharges into a stream, in which case no matter what its flow, that stream is protected (though livestock operations are specifically exempt from that provision). The controversy comes in, as it so often does, in the margins. If there's a question of classification, KDHE now must look at cost vs. benefit.

"That one's got us stumped," Mueldener said. "We've got a long ways to go to work this out. And EPA is looking at that part real hard.

"We think this 1 cfs median, based on a 10-year period, is a good place to start," he added.

"We also recognize there could be some spring-fed streams that don't have a median flow of 1, but they're really nice and pretty, and you and I would look at it and say, Isn't that nice. Yet it might not be protected.

"I think I should have the ability as a state regulator to protect that stream. But to do that, now I've got to show that the benefits outweigh the costs.”

One of the basic concepts in the Clean Water Act, and all the subsequent federal regs aimed at promulgating and interpreting it, is that of the rebuttable assumption – that is, the law requires you to assume one thing unless you can rebut it with hard data.

We present these three points of view in that spirit. If you're an environmentalist, you may assume Benjamin is correct. If you want to give farmers and ranchers the benefit of the doubt, that's OK too. But keep an eye on this issue as it develops and be prepared to let the facts rebut the opinion of your favorite spokesman.

After all, our families, and the intakes to our water treatment plants, are all downstream of someone else.

Mueldener adds that there is more to cleanliness of a stream than just E. coli and fecal coliform. Bacteria are only a rough indicator of the quality. Until the day comes when EPA creates standards – minimum contaminant levels (MCLs) for raw water quality – as it now does for treated water, public water supply systems using surface water will most likely continue to support whatever improvements can be made to the streams upstream from their intakes.

We’ve learned that the Justice Dept. does not plan to appeal the court decision. EPA is proceeding to comply with the Order and promulgate the standards required by the Order, by about June 30. EPA is also scrambling to complete its review and approval process for the SB 204 standards. Stay tuned.

Figures don't lie, but liars can figure

Once upon a time, in a world far away, someone in Congress, or in some environmental group, probably thought it would be a good idea to make sure that Americans could jump into a stream or a lake and paddle around without causing themselves undue harm. Trouble is, it's hard to define "frolicking" in federal law, and boy, could generations of lawyers get rich debating just what "undue harm" means.

So before EPA could be asked to enforce the Clean Water Act, someone had to translate that concept into terms that could be measured, calculated, written down and enforced. Now, we haven't read up on the legislative history of the original '72 Act, nor have we gone to some nursing home and interviewed a retired Congressional staffer. We can just see this process happening in our mind's eye. "We can't tell EPA to keep people pretty safe," someone said. "We have to tell them how safe."

"I used to work for an insurance company," someone else replied. "We called it 'risk.'" And that – or something like that – is how EPA came up with tables comparing different levels of risk to different levels of E. coli.

Now, talking about fecal coliform always makes people go "Yuck!" but it's really not about coming into contact with human waste. Or even cattle waste. In the first place, it's the bacteria they're measuring, not the poop. Secondly, you're as likely to get sick from contact with other bacteria as with E. coli, but it's easy and routine to test for E. coli. So the familiar little bacterium is used as a stand-in: Measure the E. coli (actually not the kind if poop, aka fecal coliform, but a related micro-organism), and you'll get a good idea of the level of other kinds of harmful bacteria too.

So how much risk is acceptable?

EPA decided that a level of eight sick people for every 1,000 going swimming in a particular body of water was a good cutoff. We'd like to think that someone did some research and found that 8 per 1,000 (or 4, or 6) was how many got sick just from sitting on the couch and watching TV – after all, life itself is not without risk – but we're just guessing.

It turns out that someone did indeed do research at swimming beaches. We now know how many people will get sick, on average, at different levels of E. coli. (Want to see for yourself? Go to www.epa.gov/ost/standards/bacteria/bacteria.pdf and check out the table at the bottom of P. 82 at that site.)

Different measures

The next step, unfortunately, involves statistics, and stats is a discipline apparently designed primarily to keep really good students from graduating from college with perfect 4.0 grade-point averages.

The important point to remember is that there's more than one way to measure E. coli. In particular, the standard for secondary-contact recreation is measured as a maximum, while for some reason primary-contact recreation is measured as a geometric mean. (A brief explanation, not of how to figure a geometric mean, but why it's used: E. coli fluctuates wildly – like from tens to hundreds to even tens of thousands – and a geometric mean smoothes out the fluctuations and gives you a more realistic number. If that's true, though, why are the data for secondary-contact allowed to fluctuate?)

The first person who explains exactly how to figure a geometric mean, and explains it in plain English, gets a free KRWA ball cap.

And if you can give a good explanation, in 25 words or less, of why two similar standards are defined in entirely different ways, we'll get Gov. Sebelius (OK, OK, KRWA's President Pat Shaffer) to autograph your new hat.

Even smart people can have trouble with all this complexity.

Charles Benjamin, for instance, has a Ph.D. on top of his law degree. Yet he tried to elicit testimony from KDHE during his recent federal lawsuit explaining why the agency was permitting ten times the bacteria in streams designated for secondary-contact recreation as in those listed for primary contact. In reality, the ratio is about two to one.

If people of good will can get it wrong, who needs out-and-out liars?

From July 2003 issue of The Kansas Lifeline © 2003 KRWA