Topeka — Editor's note: Katrina Hull covers energy, water and environmental issues in the Topeka bureau of The Associated Press.
Amid all the arguments over a certain water quality bill, Sen. Derek Schmidt simply wants to know: If it passes, will it keep state inspectors from stepping in if his cows should foul Potato Creek?
There are as many answers as there are parties interested in the measure, including environmentalists, the farmer-ranchers who dominate the Senate Natural Resources Committee and the Kansas Department of Health and Environment.
"We have a lot of sharp rhetoric on both sides that makes it difficult for those in the middle including KDHE and some legislators to find the rational middle ground," said Schmidt, R-Independence. A lawyer and farmer, he serves on the committee but was not involved in drafting the bill.
At its core, the measure directs KDHE to reclassify Kansas streams for pollution control purposes.
Supporters, including farm interests, say the measure would make the KDHE do its job by setting deadlines and standards for stream tests. Further, they say, it would spare the state unnecessary cleanups by exempting dry stream beds.
But KDHE officials say the bill would make their job harder by eliminating some of their flexibility in deciding how to respond to pollution. The agency also contends the measure lowers pollution controls for streams that are far from dry.
Both sides agree it's just common sense that in truly dry stream beds, there's nothing to clean up.
What they cannot agree on and have not described in specific detail is what the bill actually means for controlling pollution.
"That's a bit puzzling," said Karl Mueldener, director of the agency's water bureau.
Inviting intervention
Members of the Senate Natural Resources Committee say the KDHE's failure to classify streams accurately a decade ago invited intervention by the U.S. Environmental Protection Agency.
The bill would give KDHE until the end of 2002 to review the current classifications, and creates a formal process the agency is to use for changing a stream's designation.
In response to a 1999 lawsuit by two environmental groups, the EPA challenged the state's designation of 164 lakes and 1,292 streams as "secondary" not meant for swimming.
The EPA wants those lakes and streams classified as "primary" meant for swimming unless the state can show why they should not be.
Sen. Tim Huelskamp, a farmer-rancher from southwest Kansas, said some of the streams are better described as "ditches" that should never have been included by KDHE on any list of stream beds for the EPA to review.
"It's insane, is what it is," said Huelskamp, R-Fowler. "We're trying to bring a little bit of sanity back into this."
As a remedy, he said, "We're having to put in a bill that a ditch is not a stream."
The bill's definition of a "stream" is a source of dispute between the 21 agricultural groups that support the measure and environmentalists who oppose it. Under the bill, streams with flows of less than 1 cubic foot per second would be exempt from classification and pollution control unless there's evidence that an endangered species lives in the stream bed.
That flow is about equivalent to the water emitted by two garden hoses running simultaneously, agricultural groups say.
Dave Murphy, an environmental activist from the Johnson County town of Shawnee, disagrees, calling it "the equivalent of an open fire hydrant (or) a water main break."
The U.S. Geological Survey, meanwhile, describes 1 cubic foot per second as equal to about 448 gallons a minute, 27,000 gallons an hour, or 646,000 gallons a day close to the amount needed to fill an Olympic-sized swimming pool.
Seeking suggestions
Hoses, hydrants and swimming pools aside, Schmidt still wonders: If the bill passes, will it keep the KDHE's inspectors from getting involved if he irresponsibly lets his cows foul that creek on his land?
"Their answer is, 'Yes, they could stop me, but it might be harder,"' Schmidt said.
But even that isn't clear. Environmentalists point out that for pollution control purposes, the bill distinguishes streams that are accessible only to the owners of adjacent land from streams that are accessible to others.
Schmidt would like to hear more suggestions from the KDHE itself.
"We can't get this fixed when KDHE takes the approach to sit on the sidelines and play critic," Schmidt said.
Mueldener, of the KDHE, said the agency feels caught in the middle, given its responsibilities to serve the state and to listen to the EPA. He said he knows the agency should delete dry stream beds from its list of classified streams, and "we've been working on how to solve that problem with EPA.
"The ag groups are saying the Legislature needs to step in here and fix this, and we don't think they do," he said.
Left unsettled is exactly what the bill means for the environment.
Mueldener said: "Even for people that have worked in the arena, there's a lot of discussion about that."
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