[Federal Register Volume 67, Number 220 (Thursday, November 14, 2002)]
[Proposed Rules]
[Pages 68971-68984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28922]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA Docket ID No. OW-2002-0022; FRL-7408-3]
Water Quality Standards for Kentucky
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comments.
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SUMMARY: EPA is proposing water quality standards that establish an
antidegradation policy and implementation methods for high quality
waters in the Commonwealth of Kentucky. On August 7, 1997, EPA
disapproved the Commonwealth's antidegradation provisions for ``high
quality waters'' because the criteria for designating such waters were
not sufficiently inclusive. The Commonwealth subsequently revised
portions of the antidegradation provisions. However, the replacement
standards did not address all of the disapproved items. The Clean Water
Act requires the Administrator to propose and promulgate revised water
quality standards if she determines that a standard adopted by a State
is inconsistent with the Act.
DATES: EPA will consider written comments on the proposal received by
March 14, 2003.
EPA will hold a public hearing on this proposed rule on January 23,
2003, from 2 pm to 5 pm and from 7 pm to 10 pm. If you need special
accommodations at this meeting, including wheelchair access or sign
language interpreter, you should contact Fritz Wagener at 404/562-9267
at least 15 business days prior to the meeting so that we can make
appropriate arrangements.
ADDRESSES: Send your comments by mail to: Docket Manager, Attention
Docket ID No. OW-2002-0022, Water Quality Standards for Kentucky, EPA,
Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW.,
Atlanta, Georgia 30303-3104. You may also submit comments
electronically, or through hand delivery or courier. Follow the
detailed instructions provided in I.C. The hearing will be conducted at
the Capital Plaza Convention Complex, 405 Mero Street, Frankfort,
Kentucky.
Comments may be submitted electronically, by mail, or through hand
delivery or courier. Follow the detailed instructions provided in
SUPPLEMENTARY INFORMATION Part I. General Information.
FOR FURTHER INFORMATION CONTACT: Fritz Wagener, Water Quality Standards
[[Page 68972]]
Coordinator, Water Management Division, EPA, Region 4, Sam Nunn Atlanta
Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303-3104,
404/562-9267, [email protected].
SUPPLEMENTARY INFORMATION: This section is organized as follows:
I. General Information
A. What Entities May Be Affected by this Action?
B. How Can I Get Copies of this Document and Related
Information?
C. How and to Whom Do I Submit Comments?
D. What Should I Consider as I Prepare My Comments for EPA?
II. Background
A. What Are the Applicable Federal Statutory and Regulatory
Requirements?
B. What Are Kentucky's Antidegradation Provisions?
C. Why Is EPA Proposing Federal Antidegradation Provisions for
the Commonwealth of Kentucky?
III. Today's Proposed Rule
A. What Is the Proposed Policy to Protect Kentucky's High
Quality Waters?
B. How Will Kentucky Identify a High Quality Water?
C. How Will Kentucky Implement the Proposed High Quality Waters
Policy?
D. What Are the Cost Implications of the Proposed Rule?
IV. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review)
B. Executive Order 13045 (Protection of Children from
Environmental Health Risks and Safety Risks)
C. Executive Order 13132 (Federalism)
D. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
E. Executive Order 13211 (Actions that Significantly Affect
Energy Supply, Distribution or Use)
F. Paperwork Reduction Act
G. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
H. Unfunded Mandates Reform Act
I. National Technology Transfer and Advancement Act of 1995
J. Endangered Species Act
K. Plain Language
I. General Information
A. What Entities May Be Affected by This Action?
Citizens concerned with water quality in Kentucky may be interested
in this proposed rulemaking. Today's proposal, if made final, will
establish an antidegradation policy for high quality waters in the
Commonwealth of Kentucky (hereafter, ``the Commonwealth'' or
``Kentucky'') and methods for implementing the policy. High quality
waters are waters where the quality of the water is better than the
levels necessary to support propagation of fish, shellfish, and
wildlife and recreation in and on the water. Waters that currently are
regulated by Kentucky under the Commonwealth's exceptional waters and
outstanding national resource waters provisions of its regulations
would not be subject to this rule because they are already protected
under Kentucky's antidegradation program.
Entities potentially indirectly affected by this action are
National Pollutant Discharge Elimination System (NPDES) permit
applicants in Kentucky. Kentucky is authorized to issue these permits
and does so through the Kentucky Pollutant Discharge Elimination System
(KPDES) program, CWA section 404 dredge and fill permits, and other
activities requiring a CWA 401 certification. The KPDES permit
applicants (e.g., industries or municipalities) which request
authorization from the Commonwealth of Kentucky for a new or an
increased discharge to high quality waters in Kentucky are the entities
potentially indirectly affected by this action. Categories and entities
that may be indirectly affected include:
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Examples of potentially affected
Category entities
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Industry.............................. Industries discharging
pollutants to Kentucky high
quality waters as defined in
Sec. 131.39 of this proposed
rule.
Municipalities........................ Publicly-owned treatment works
discharging pollutants to
Kentucky high quality waters as
defined in Sec. 131.39 of
this proposed rule.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding KPDES regulated entities likely to be
affected by this action. This table lists the types of entities that
EPA is now aware could potentially be affected by this action. Other
types of entities not listed in the table could also be affected. To
determine whether your facility may be affected by this action, you
should carefully examine today's proposed rule. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
B. How Can I Get Copies of This Document and Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2002-0022. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing
under Water Quality Standards for Kentucky at Water Management
Division, EPA, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth
Street, SW., Atlanta, Georgia 30303-3104. This Docket Facility is open
from 9 am to 3:30 pm, Monday through Friday, excluding legal holidays.
The Docket telephone number is 404-562-9267. A reasonable fee will be
charged for copies.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in OW-2002-0022, the docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA's electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in I.B.1. EPA intends to work towards
providing electronic access to all of the publicly available docket
materials through EPA's electronic public docket.
[[Page 68973]]
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or on paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket identified
in I.B.1.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
For additional information about EPA's electronic public docket,
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
C. How and To Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery or courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments. The Agency will make every
attempt to consider them, however.
1. Electronically. If you submit an electronic comment as
prescribed in this section, EPA recommends that you include your name,
mailing address, and an e-mail address or other contact information in
the body of your comment. Also include this contact information on the
outside of any disk or CD ROM you submit, and in any cover letter
accompanying the disk or CD ROM. This ensures that you can be
identified as the submitter of the comment and allows EPA to contact
you in case EPA cannot read your comment due to technical difficulties
or needs further information on the substance of your comment. EPA's
policy is that EPA will not edit your comment, and any identifying or
contact information provided in the body of a comment will be included
as part of the comment that is placed in the official public docket,
and made available in EPA's electronic public docket. If EPA cannot
read your comment due to technical difficulties and cannot contact you
for clarification, EPA may not be able to consider your comment.
i. E-Dockets. Your use of EPA's electronic public docket to submit
comments to EPA electronically is EPA's preferred method for receiving
comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and
follow the online instructions for submitting comments. To access EPA's
electronic public docket from the EPA Internet Home Page, select
``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the
system, select ``search,'' and then key in Docket ID No. OW-2002-0022.
The system is an ``anonymous access'' system, which means EPA will not
know your identity, e-mail address, or other contact information unless
you provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to
[email protected], Attention Docket ID No. OW-2002-0022, Water
Quality Standards for Kentucky. In contrast to EPA's electronic public
docket, EPA's e-mail system is not an ``anonymous access'' system. If
you send an e-mail comment directly to the Docket without going through
EPA's electronic public docket, EPA's e-mail system automatically
captures your e-mail address. E-mail addresses that are automatically
captured by EPA's e-mail system are included as part of the comment
that is placed in the official public docket, and made available in
EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address in I.C.1. These electronic
submissions will be accepted in WordPerfect or ASCII file format. Avoid
the use of special characters and any form of encryption.
2. By Mail. Send your comments to: Docket Manager, Attention Docket
ID No. OW-2002-0022, Water Quality Standards for Kentucky, EPA, Region
4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta,
Georgia 30303-3104.
3. By Hand Delivery or Courier. Deliver your comments to: Docket
Manager, Attention Docket ID No. OW-2002-0022, Water Quality Standards
for Kentucky, EPA, Region 4, Sam Nunn Atlanta Federal Center, 61
Forsyth Street, SW., Atlanta, Georgia 30303-3104. Such deliveries are
only accepted during the Docket's normal hours of operation as
identified in I.B.1.
D. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period
deadline identified.
8. To ensure proper receipt by EPA, identify the appropriate
docket identification number in the subject line on the first page
of your response. It would also be helpful if you provided the name,
date, and Federal Register citation related to your comments.
II. Background
A. What Are the Applicable Federal Statutory and Regulatory
Requirements?
Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA) requires
States and authorized Tribes to adopt water quality standards for
waters of the United States within their applicable jurisdictions. Such
water quality standards must include, at a minimum: (1) Designated uses
for all water bodies within their jurisdictions, (2) water quality
criteria necessary to protect the most sensitive of the uses, and (3)
antidegradation provisions consistent with the regulations at 40 CFR
131.12.
Antidegradation is an important tool for States and authorized
Tribes to use in meeting the CWA's requirement that water quality
standards protect the public health or welfare, enhance the quality of
water and meet the objective of the CWA to restore and maintain the
chemical, physical and biological integrity of the nation's waters.
EPA's regulation at 40 CFR 131.12 requires that States and
authorized Tribes adopt antidegradation policies and identify
implementation methods to provide three levels of water quality
protection. The first level of protection at 40 CFR 131.12(a)(1)
requires the maintenance and protection of existing instream water uses
and the level of water quality necessary to protect those existing
uses. Protection of existing uses is the floor of water quality
protection afforded to all waters of the United States. Existing uses
are ``. . . those uses actually attained in the water body on or after
November 28, 1975, whether
[[Page 68974]]
or not they are included in the water quality standards.'' (40 CFR
131.3(e))
The second level of protection is for high quality waters. High
quality waters are defined in 40 CFR 131.12(a)(2) as waters where the
quality of the waters is better than the levels necessary to support
propagation of fish, shellfish, and wildlife and recreation in and on
the water. This water quality is to be maintained and protected unless
the State or authorized Tribe finds, after public participation and
intergovernmental review, that allowing lower water quality is
necessary to accommodate important economic or social development in
the area in which the waters are located. In allowing lower water
quality, the State or authorized Tribe must assure water quality
adequate to protect existing uses. Further, the State or authorized
Tribe must ensure that all applicable statutory and regulatory
requirements are achieved for all new and existing point sources and
all cost-effective and reasonable best management practices are
achieved for nonpoint source control.
Finally, the third and highest level of antidegradation protection
is for outstanding national resource waters (ONRWs). If a State or
authorized Tribe determines that the characteristics of a water body
constitute an outstanding national resource, such as waters of National
and State parks and wildlife refuges and waters of exceptional
recreational or ecological significance, and designates a water body as
such, then those characteristics must be maintained and protected (see
40 CFR 131.12(a)(3)).
B. What Are Kentucky's Antidegradation Provisions?
The Commonwealth's antidegradation regulations are contained in 401
Kentucky Administrative Register (KAR) 5:029 section 1 and KAR 5:030.
For the purposes of implementing antidegradation requirements, Kentucky
places surface waters in one of three categories: ONRWs, exceptional
waters, and use protected waters. Following is a brief discussion of
these categories:
ONRWs. The two criteria that must be met in order for the
Commonwealth to designate a water body as an ONRW are included in 401
KAR 5:030, section 1.(1)(a), as follows:
1. Surface water that meets, at a minimum, the requirements for
an outstanding state resource water classification found in 401 KAR
5:031 section 7; and
2. Surface water that demonstrates to be of national ecological
or recreational significance.
The provisions of 401 KAR 5:031 section 7 require the designation
as an outstanding state resource water for the following: Waters
designated under the Kentucky Wild Rivers Act; waters designated under
the Federal Wild and Scenic Rivers Act; waters identified under the
Kentucky Nature Preserves Act that are contained within a formally
dedicated nature preserve or are published in the registry of natural
areas; and waters that support federally recognized endangered or
threatened species under the Endangered Species Act. Other waters of
the Commonwealth given consideration for an outstanding state resource
water designation include: Waters which flow through or are bounded by
State or Federal forest land; waters that are of exceptional aesthetic
or ecological value; waters that are a part of a unique geological or
historical area recognized by State or Federal designation; or a water
which is a component part of an undisturbed or relatively undisturbed
watershed that can provide basic scientific data and exhibits two of
the following characteristics: (1) The water body supports a diverse or
unique native aquatic flora or fauna; (2) the water body possesses
physical or chemical characteristics that provide an unusual and
uncommon aquatic habitat; or (3) the water body provides a unique
aquatic environment within a physiographic region. (See 401 KAR 5:031
section 7).
Kentucky requires that water quality in ONRWs be maintained and
protected. Temporary or short-term changes in water quality may be
allowed if the changes will not have a demonstrable impact on the
ability of the ONRW to support its designation. Kentucky's provisions
for ONRWs are consistent with EPA's requirements at 40 CFR
131.12(a)(3).
Exceptional Waters. Paragraph (2) of 401 KAR 5:029 section 1
contains the portion of Kentucky's antidegradation policy which
addresses the requirements for waters with quality that is better than
the levels necessary to support propagation of fish, shellfish and
wildlife and recreation in and on the water. Kentucky defines
exceptional waters in 401 KAR 5:030, section 1.(1)(b), using the
following criteria:
1. Surface water designated as a Kentucky Wild River, unless it
is categorized as an outstanding national resource water;
2. Outstanding state resource water that does not support a
federally threatened or endangered aquatic species;
3. Surface water that fully supports all applicable designated
uses and contains:
a. A fish community that is rated ``excellent'' by the use of
the Index of Biotic Integrity, included in ``Methods for Assessing
Biological Integrity of Surface Waters,'' incorporated by reference
in section 4 of this administrative regulation; or
b. A macroinvertebrate community that is rated ``excellent'' by
the Macroinvertebrate Bioassessment Index, included in ``A
Macroinvertebrate Bioassessment Index for Streams of the Interior
Plateau Ecoregion in Kentucky,'' incorporated by reference in
section 4 of this administrative regulation; and
4. Water in Kentucky's Natural Resources and Environmental
Protection Cabinet's reference reach network.
Water bodies are included in Kentucky's Reference Reach Network
after an extensive evaluation of water body and watershed
characteristics. After initial and secondary screening based on factors
such as riparian zone condition, surrounding land use, extent of
hydrologic modification, habitat, and other physical characteristics,
waters are selected for inclusion in the Reference Reach Network based
on a review of the following: (1) Condition of the riparian zone, (2)
bank stability, (3) percentage of fine sediment and algal mats in the
substrate, (4) amount of suspended solids during normal weather
conditions, (5) stable bottom habitat, (6) amount of solid waste in the
water body and its banks, (7) land use, and (8) accessibility.
Kentucky's process for implementing antidegradation provisions for
exceptional waters involves the application of specified effluent
limitations for new or expanded discharges. For example, domestic
discharges are limited to discharge at levels of 10 mg/l for five-day
carbonaceous biochemical oxygen demand, 2 mg/l of ammonia nitrogen, 10
mg/l total suspended solids, and 7 mg/l dissolved oxygen, among others.
Also, certain discharges are restricted to no more than one-half of the
limitation that would have been permitted for use protected waters for
other parameters. These limitations apply to new or expanded
discharges, unless a permit applicant can meet the following
requirements:
* * * the applicant will demonstrate to the satisfaction of the
cabinet that allowing lower water quality is necessary to
accommodate important economic or social development in the area in
which the waters are located following the guidelines in ``Interim
Economic Guidance for Water Quality Standards Workbook,'' EPA, March
1995 incorporated by reference in section 4 of this administrative
regulation and include an alternative analysis that shall consider
the following:
1. Discharge to other treatment facilities;
2. Use of other discharge locations;
3. Water reuse or recycle;
4. Process and treatment alternatives; and
[[Page 68975]]
5. On-site or subsurface disposal.
KPDES permit renewals with discharges to exceptional waters that
result in less than a 20 percent increase in pollutant loading are
exempt from these antidegradation requirements. (See 401 KAR 5:030
section 1.(3)(a)6.)
Use protected waters. The Commonwealth's use protected category
includes a mix of waters. Use protected waters are defined in 401 KAR
5:030, section 1.(1)(c) as including any ``water not listed in section
3 of this administrative regulation as (an) outstanding national
resource water or exceptional water.''
Kentucky's regulations at 401 KAR 5:030 section 1.(4)(a) provide
that: ``All existing uses shall be protected and the level of water
quality necessary to protect the uses shall be assured in the use
protected water.'' A use protected water is also protected through the
application of all applicable water quality criteria necessary to
support its designated uses. In a letter dated May 24, 2001, from Mr.
Jack A. Wilson, Director, Kentucky Division of Water, to Ms. Beverly
Banister, Director, EPA Region 4 Water Management Division, the
Commonwealth gave the following explanation of this category:
* * * the use-protected category included all waters that were
not ONRWs or exceptional, i.e., waters that met uses and were
impaired. It is more clear and straightforward to separate this use
protected category into two categories: high quality water[s] (Tier
2) and impaired [waters] (Tier 1).
Based on this explanation, waters designated for antidegradation
purposes as use protected waters include: (1) Waters with quality that
is better than the levels necessary to support propagation of fish,
shellfish, wildlife, and recreation in and on the water (in addition to
waters meeting these criteria already designated as exceptional
waters), (2) waters that just meet their designated aquatic life and
recreation uses and (3) impaired waters which are not attaining their
designated uses.
C. Why Is EPA Proposing Federal Antidegradation Provisions for the
Commonwealth of Kentucky?
EPA is proposing Federal water quality standards for high quality
waters in Kentucky because EPA disapproved the Commonwealth's
antidegradation provisions that were intended to establish requirements
for high quality waters commensurate with those required by EPA's Water
Quality Standards regulation at 40 CFR 131.12(a)(2). The Commonwealth's
provisions only apply to a limited subset of high quality waters rather
than to all waters whose quality is better than the levels necessary to
support propagation of fish, shellfish and wildlife and recreation in
and on the water.
The following table shows EPA's estimate of the number of stream
miles and water bodies in each of Kentucky's antidegradation
categories.
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% of total
Category of waters Stream miles Water bodies stream miles
----------------------------------------------------------------------------------------------------------------
Total..................................................... 49,100.0 .............. 100
-----------------
Outstanding national resource waters............................ 29.6 3 0.06
Exceptional waters.............................................. 665.0 75 1.35
Use protected, but impaired..................................... 3,945.0 700 8.0
Use protected, and not determined to be impaired................ 44,460.0 (\1\) 90.6
----------------------------------------------------------------------------------------------------------------
\1\ All others.
These estimates are based on EPA's analysis of waters currently
listed in KAR 5:030 section 3, and information provided in the May 24,
2001, letter from the Kentucky Division of Water to EPA. The mileage
reported as use protected and not determined to be impaired was
estimated using the length of waters classified as Partially Supporting
or Not Supporting, for aquatic life and swimming uses in the ``1998
Kentucky Report to Congress on Water Quality,'' (i.e., Kentucky's
305(b) Report) (Kentucky Natural Resources and Environmental Protection
Cabinet, Division of Water, January 1999). EPA generated the stream
mile estimates above for those use protected waters determined not to
be impaired by subtracting the sum of the waters designated as ONRWs,
waters designated as exceptional waters, and use protected waters, but
impaired, from the total mileage reported in the Commonwealth.
Kentucky's approach limits the use of the special protections for
high quality waters to the Commonwealth's exceptional waters category
which comprise just 1.35 percent of all its waters. However, Kentucky's
1998 305(b) Report shows that approximately 67 percent of the
Commonwealth's unassessed waters are candidates for the high quality
water protections. This pattern is confirmed by recent intensive
watershed sampling in the Kentucky, Salt and Licking River basins, as
well as data from random statewide aquatic life biological sample in
wadeable streams conducted by the Kentucky Division of Water over the
last two years. This recent sampling shows that approximately 60
percent of the sites fully support their designated uses.
The above information and analysis show that the eligibility
criteria adopted by the Commonwealth for the exceptional waters
category results in only a relatively small percentage of surface
waters receiving the protection of the high quality water provisions at
401 KAR 5:029 section 1.(2). Therefore, EPA determined that Kentucky's
exceptional waters category does not include other waters whose quality
exceed levels necessary to support propagation of fish, shellfish and
wildlife and recreation in and on the water, as required in 40 CFR
131.12(a)(2). In addition, Kentucky's implementation procedures for the
use protected category (401 KAR 5:030 section 1.(4)) do not require
that the Commonwealth evaluate the necessity of lowering water quality,
even though this category does include high quality waters.
In a letter of August 7, 1997, from John H. Hankinson, Jr., EPA
Region 4 Regional Administrator, to General James E. Bickford,
Secretary, Commonwealth of Kentucky Natural Resources and Environmental
Protection Cabinet, EPA Region 4 disapproved the Commonwealth's
eligibility criteria in 401 KAR 5:030 section 1.(3) for designating
waters to be given high quality water protection, and specified the
changes needed for EPA to approve a revised water quality standard. In
an October 9, 1997, letter from General James E. Bickford, Secretary,
Commonwealth of Kentucky Natural Resources and Environmental Protection
Cabinet to John H. Hankinson, Jr., EPA Region 4 Regional
[[Page 68976]]
Administrator, responding to EPA's disapproval, Kentucky stated its
intention to expand the universe of high quality waters receiving added
protection from the effects of point source discharges regulated under
the KPDES program. Kentucky also indicated that the revisions would be
part of its upcoming triennial review of water quality standards.
Kentucky began its water quality standards triennial review in
October 1998 with a public notice and mailing to interested parties of
its intent to update uses, revise numeric criteria, strengthen mixing
zone language, and to respond to EPA's 1997 antidegradation
disapproval. The February 1999 ``Administrative Register of Kentucky''
included a notice of intent to revise the water quality standards
regulation and to hold a public hearing on February 25, 1999. After
adoption of revisions to Kentucky water quality standards on December
8, 1999, Kentucky submitted the results of its triennial review to EPA
on December 15, 1999. However, the revisions did not sufficiently
broaden the criteria to increase the number of eligible waters for the
exceptional waters category, consistent with EPA's regulation at 40 CFR
131.12(a)(2). Therefore on August 30, 2000, EPA Region 4 notified the
Commonwealth that the high quality waters provisions of Kentucky's
water quality standards remained disapproved.
In a letter of May 24, 2001, from Mr. Jack A. Wilson, Director,
Division of Water, to Ms. Beverly Banister, Director, Water Management
Division, Kentucky clarified that the exceptional waters category is
intended to provide a higher level of protection than the level for
other high quality waters. Several States and authorized Tribes have
created an additional category of water between high quality waters and
ONRWs in their antidegradation policy. Kentucky's exceptional waters
category generally includes more stringent controls than those required
for high quality waters, but allows more flexibility to make
adjustments in criteria and in permitting decisions than would normally
be allowed if the water body were designated as an ONRW. EPA believes
such a category is consistent with the intent and spirit of the
antidegradation policy when supplementing the high quality water and
the ONRW categories.
The Commonwealth has an active program to identify candidates for
the exceptional waters category. The Kentucky Division of Water has
identified 133 segments, which cover approximately 567 stream miles,
meeting the criteria for inclusion in the exceptional waters category
since the previous triennial review completed in 1999. These waters
have been found to meet the exceptional waters criteria based on
ambient sampling in the Salt, Licking, Upper and Lower Cumberland,
Tennessee, and Mississippi river basins. Many of these segments have
been included in Kentucky's Reference Reach Network, and others have
been found to contain either fish or macroinvertebrate communities
rated as excellent using the Commonwealth's assessment methodologies
for evaluation of biological integrity. However, as discussed in this
section, Kentucky has no separate, readily identified high quality
waters category commensurate with 40 CFR 131.12(a)(2).
III. Today's Proposed Rule
Today's Federal Register notice proposes a high quality waters
antidegradation policy, a definition of waters to which the policy
would apply and methods for implementing the policy. Consistent with
section 303(c)(4) of the CWA, if during the Federal rulemaking process,
Kentucky adopts revisions to its antidegradation provisions which are
approved by EPA Region 4, the proposal would not be made final. In
addition, if Kentucky adopts revisions to its antidegradation
provisions which are approved following publication of a final Federal
rule, EPA would withdraw its rule.
EPA is providing an extended comment period in response to a
request from members of the public. While EPA has a statutory
obligation to take final action on the proposal in a timely manner, we
also want to ensure that interested parties have an adequate
opportunity to prepare and submit comments and to provide Kentucky with
an opportunity to adopt its own revisions to the Commonwealth's
antidegradation provisions.
A. What Is the Proposed Policy To Protect Kentucky's High Quality
Waters?
EPA is proposing that the antidegradation policy in 40 CFR
131.12(a)(2) apply to high quality waters in the Commonwealth of
Kentucky. The Agency notes that the language of the proposed policy is
somewhat different from 40 CFR 131.12(a)(2). Those differences result
only from our efforts to make the policy easier to understand, and do
not suggest any substantive difference in the Agency's interpretation
of 40 CFR 131.12(a)(2). The proposed high quality waters
antidegradation policy in section 131.39(a) reads as follows:
(1) Where the quality of the water is better than levels
necessary to support propagation of fish, shellfish, and wildlife
and recreation in and on the water, the Commonwealth of Kentucky
(hereafter, Commonwealth or Kentucky) shall maintain and protect
that quality unless Kentucky finds, after full satisfaction of the
intergovernmental coordination and public participation provisions
of the Commonwealth's continuing planning process, that allowing
lower water quality is necessary to accommodate important economic
or social development in the area in which the water is located.
(2) Before allowing lower water quality, the Commonwealth shall
ensure that all measures to fully protect existing uses shall be
achieved.
(3) Before allowing lower water quality, the Commonwealth shall
ensure that the most protective statutory and regulatory
requirements for all new and existing point sources and all cost-
effective and reasonable best management practices for nonpoint
source control shall be achieved.
Today's proposal is substantially the same as Kentucky's current
antidegradation policy in 401 KAR 5:029 section 1.(2), with the
critical exception that EPA's proposal does not include the sentence:
``For point source discharges, water quality shall be maintained and
protected according to the procedures specified in 401 KAR 5:030,
section 1.(3).''
This sentence in Kentucky's policy limits the number of waters
protected to those identified as exceptional waters. As discussed in
section II.C., EPA disapproved the Commonwealth's high quality
antidegradation provisions because the eligibility criteria were not
sufficiently inclusive.
EPA recognizes that the Commonwealth has adopted an antidegradation
policy consistent with the provisions in 40 CFR 131.12(a)(2) for some
of its high quality waters. EPA is proposing the policy for high
quality waters in Kentucky, except for ONRWs and exceptional waters, in
order to include high quality waters not currently recognized as such
in Kentucky's water quality standards. This would allow the application
of the antidegradation policy to certain waters now in the
Commonwealth's use protected waters category.
EPA's proposed high quality waters policy in conjunction with the
Commonwealth's existing antidegradation policy provides that before
authorizing lower water quality in a high quality water, the
Commonwealth shall ensure the implementation of all measures to fully
protect existing uses. EPA interprets this provision to mean that
Kentucky will evaluate the cumulative effects from previous loading
increases to ensure that water quality will continue to protect
existing uses. As stated previously, this level of protection is the
[[Page 68977]]
``floor'' of water quality protection afforded to all waters.
The proposed antidegradation policy for high quality waters further
provides that before lowering the water quality in high quality waters,
Kentucky shall ensure that the most protective statutory and regulatory
requirements for all new and existing point sources and all cost-
effective and reasonable best management practices for nonpoint source
control shall be achieved.
EPA does not interpret the nonpoint source provision to require the
establishment of nonpoint source control requirements where none exist.
Rather, where nonpoint source control programs or regulatory
requirements have been established under State authorities, these
requirements are to be implemented prior to lowering the quality of
high quality waters (see Memorandum from Tudor T. Davies, Director, EPA
Office of Science and Technology to EPA Water Management Division
Directors, Regions 1-10, Subject: Interpretation of Federal
Antidegradation Regulatory Requirement, February 22, 1994).
B. How Will Kentucky Identify a High Quality Water?
Today's proposal, if finalized, defines high quality waters as any
surface water other than those currently designated by the Commonwealth
as exceptional waters or ONRWs, where the quality of the water is
better than the levels necessary to support propagation of fish,
shellfish, and wildlife and recreation in and on the water. EPA's
current regulation provides a great deal of flexibility to States and
authorized Tribes in making those decisions.
Identifying high quality waters is key for antidegradation to be
effective. In general, States and authorized Tribes identify high
quality waters using one of two approaches: (1) The parameter-by-
parameter or pollutant-by-pollutant approach or (2) the designational
or water body-by-water body approach. Under the parameter-by-parameter
approach, States and authorized Tribes determine whether water quality
is better than the applicable criteria for a specific parameter or
pollutant that would be affected by a new discharge or an increase in
an existing discharge of the pollutant. For example, if dissolved
oxygen levels were at 7 milligrams per liter (mg/L) and the criteria
were 5 mg/L, that water body would be a high quality water for
dissolved oxygen, but might not necessarily be a high quality water for
another parameter. Such determinations are generally made at the time
of a permit application for a new discharge or an increase in an
existing discharge of the pollutant in question. The designational
approach weighs chemical, physical, biological, or other factors to
judge a water body's overall quality. EPA has approved both approaches,
and, under today's proposed rule, either approach or a combination of
the approaches would be available to the Commonwealth for identifying
high quality waters.
Some States use the designational approach to identify high quality
waters. Under one type of designational approach, a water body must
attain both the aquatic life and recreational uses to be considered a
high quality water. For example, a water body that is attaining one of
it designated uses (such as aquatic life) would not receive an
antidegradation review if the water body were not attaining its other
use (such as recreation). EPA has found this approach to be consistent
with 40 CFR 131.12. There are other ways to implement the designational
approach. For example, a State could designate a water body as a high
quality water for that use if the water body were attaining either the
aquatic life use or the recreational use. Under this approach, an
antidegradation review would be conducted for aquatic life uses when,
for example, biological indices rated the macroinvertebrate or fish
populations as ``good'' even if the fecal coliform densities exceeded
levels safe for recreation in and on the water.
In today's proposal, EPA is not requiring a specific approach that
Kentucky must use in identifying high quality waters. Rather, the
Agency is continuing its long-standing policy that would allow Kentucky
to use, as appropriate, biological or chemical data or a combination of
both on a parameter-by-parameter basis, or a designational approach to
identify high quality waters. EPA is seeking comments on the pollutant-
by-pollutant and designational approaches for identifying high quality
waters.
The Commonwealth may identify high quality waters at the time of a
permit application for a new discharge or an increase in an existing
discharge, or may identify high quality waters at any time based on a
review of ambient data showing that the quality of the water is better
than the levels necessary to support the propagation of fish,
shellfish, and wildlife and recreation in and on the water. To comply
with the antidegradation policy for a high quality water, the
Commonwealth must make a high quality water determination prior to
allowing lower water quality in the water body.
Kentucky, in a May 24, 2001, letter from Jack A. Wilson, Director,
Kentucky Division of Water, to Ms. Beverly Banister, Director, Water
Management Division, EPA Region 4, stated, `` * * * the DOW (Division
of Water) strongly disagrees with the parameter-by-parameter
approach.'' EPA interprets this statement as a strong preference by the
Commonwealth that any Federal rule be written in a way not to limit its
approach for the identification of high quality waters to the use of
ambient chemical data.
The Commonwealth's existing antidegradation program uses biological
data and information to rate and evaluate waters. EPA considers
Kentucky's biological approach to be a valid framework for identifying
high quality waters under today's proposal. Kentucky has developed a
substantial database on the occurrence and diversity of ambient
macroinvertebrate populations and fish populations found in surface
waters of the Commonwealth, and has used this data to establish indices
of relative aquatic health for these two subpopulations of aquatic
life.
Based on EPA's review of Kentucky's biomonitoring program, the data
and the indices generated by the Commonwealth, EPA believes that the
assessment of any segment resulting in a biological rating of ``good,''
rather than ``excellent,'' for either a macroinvertebrate or a fish
population, when using the methods referenced in 401 KAR 5:030, section
1.(1)(b)3.a. and b., is sufficient to conclude that the ambient water
quality of that segment is better than that ``necessary to support
propagation of fish, shellfish, and wildlife,'' and, therefore, that
segment should be considered to be a high quality water.
EPA believes that the Commonwealth, in some cases, has sufficient
biological data for the assessment of aquatic life uses, and
determinations for high quality waters, but, in other instances,
additional data and information may be required. Where additional data
and information are required for a determination, Kentucky could
request the permit applicant to collect additional biological data
using the methodologies referenced in the Commonwealth's water quality
standards regulation. If no biological data are available for the
segment's macroinvertebrate or fish population, a survey should be
conducted for both macroinvertebrate and fish populations; a rating of
``good'' for either population is sufficient to document that the
segment is a high quality water. However, EPA also believes that there
may be some instances where the Commonwealth may choose to collect the
necessary chemical data.
[[Page 68978]]
For recreational uses, the Commonwealth may use ambient water
column data on bacteriological densities. Kentucky's existing water
quality standards specify fecal coliform bacteriological criteria for
protection of recreation in and on the water. In making judgments of
water quality that is better than the levels necessary to support
recreation in and on the water, the Commonwealth can use ambient data
for fecal coliform densities. If Kentucky water quality standards are
revised to include the use of water quality criteria for E. coli or
enterococci, Kentucky must use the bacteria criteria that are adopted
and approved at the time a determination for recreation high quality is
made.
Under today's proposal, EPA does not require the Commonwealth to
take a particular approach where there are insufficient data to make a
definitive determination that a water body is high quality water. In
the absence of definitive data and information which demonstrates that
a water body is high quality, the Commonwealth may either consider the
water body to be a high quality water for the purposes of meeting
antidegradation permitting requirements, or require the collection of
additional data for a high quality determination. If the Commonwealth
considers the water body to be a high quality water, the Commonwealth
will ensure that all other antidegradation requirements are met prior
to making a determination as to whether the discharge is necessary to
accommodate important economic or social development in the area in
which the waters are located, and whether the discharge will be
allowed.
EPA is soliciting comments on the approach in today's proposal,
which provides Kentucky broad latitude in identifying high quality
waters. EPA recognizes that Kentucky is likely to use the biological
indices developed by the Commonwealth for rating ambient
macroinvertebrate and fish populations, as an acceptable means for
identifying the Commonwealth's high quality waters. EPA specifically
requests comment on the use of biological data, and requests that
commenters identify cases where a water body or water segment would not
be identified as a high quality water using biological data, but that
water body or segment would be demonstrated to be a high quality water
through the consideration of ambient chemical data.
EPA also solicits comments on whether the regulation, if made
final, should require the Commonwealth to use a particular approach in
identifying high quality waters. EPA considered specifying the
parameter-by-parameter approach using only chemical data in the
proposed rule. The parameter-by-parameter approach takes advantage of
water column data, which, in many States, are more readily available
than other types of data. Therefore, EPA is also requesting comments on
this alternative approach to today's proposal.
C. How Will Kentucky Implement the Proposed High Quality Waters Policy?
1. Significance of the discharge. Proposed activities that could
result in a lowering of water quality in a high quality water,
including proposed KPDES permits for new or increased discharges, would
require an antidegradation review, unless the Commonwealth determines
that the proposed activity will not result in a significant lowering of
water quality. EPA's practice defers to States' judgment on identifying
when an antidegradation review would not be needed. EPA does not
interpret the antidegradation policy to preclude a determination that
certain proposed new discharges or increases in existing discharges may
have an insignificant or de minimis impact on water quality and,
therefore, may not require an antidegradation review.
EPA's water quality standards regulation does not specify a
threshold below which an antidegradation review would not be needed.
However, EPA has long interpreted the antidegradation policy to allow a
determination that certain proposed new discharges or increases in
existing discharges may have an insignificant or de minimis impact on
water quality and, therefore, may not require an antidegradation
review. (See, for example, the November 10, 1986, memorandum signed by
William A. Whittington, Director of the Office of Water Regulations and
Standards, and James R. Elder, Director, Office of Water Enforcement
and Permits, indicating that one of the principles of the
antidegradation policy is a focus on significant actions.)
EPA has reflected this principle in the development of its own
rulemakings. For example, in the ``Proposed Water Quality Guidance for
the Great Lakes System,'' (GLI) 58 FR 20802, April 16, 1993, EPA
defined the term ``significant lowering of water quality'' and
discussed the concept generally, stating that:
EPA and the Great Lakes States have chosen to prioritize actions
that pose a threat to the protection and maintenance of water
quality in high quality waters by focusing the Proposed Guidance on
significant lowering of water quality. (Id., p. 20894)
In the proposed Great Lakes rule, EPA considered certain chemicals
to be bioaccumulative chemicals of concern (BCCs) and distinguished
those chemicals from other parameters affecting water quality. For
BCCs, EPA also considered any increase in mass loading of such a
pollutant to result in a significant lowering of water quality. But for
other pollutants, EPA included other factors such as assimilative
capacity (in addition to loading) in determining whether a proposed
discharge would result in a significant lowering of water quality. The
proposed Great Lakes rule also noted that the decision-maker can make a
case-by-case determination regarding the significant lowering of water
quality based on other relevant considerations. The final rule did not
reflect the significant lowering of water quality based on other
relevant factors because it dealt only with BCCs.
As for non-BCCs, the Agency also discussed in the proposed Great
Lakes rule the position that certain proposed discharges may not result
in a significant lowering of water quality and, therefore, would not
require an antidegradation review. EPA indicated that the definition of
significant lowering of water quality for non-BCC pollutants is
adequate to maintain and protect water quality of in the Great Lakes
system. EPA also stated:
It does not undercut the requirement that limitations protect
existing uses, i.e., protect all applicable water quality standards.
Rather, it limits the requirement to conduct an antidegradation
review to situations when a source sought to increase existing
permit limitations on the rate of mass loading, except as the
increase is de minimis or there would be no change in ambient water
quality, and thereby will limit the number of actions subject to a
full antidegradation review. EPA believes this is an appropriate
balance between the need to protect water quality for these
substances and the burden, to both the regulated community and the
regulatory agencies, of conducting an antidegradation review.
(emphasis added). (Id., p. 20895)
EPA has also discussed the concept of significant degradation in
the ``Advance Notice of Proposed Rulemaking,'' 63 FR 36742, July 7,
1998. EPA noted the use of significance determinations by States and
Tribes and commented upon the concept generally:
Although not discussed in 40 CFR section 131.12 of the water
quality standards regulation, State and on occasion Tribal Tier 2
implementation procedures often include guidelines which are used to
determine when the water quality degradation that will result from a
proposed activity is significant enough to warrant further
antidegradation review. Where the degradation is not significant,
the antidegradation review is
[[Page 68979]]
typically terminated for that proposed activity. The significance
evaluation is usually conducted on a pollutant-by-pollutant basis,
even where a water body-by-water body approach is used to identify
high quality waters, and significant degradation for any one
pollutant triggers further review for that pollutant. Applying
antidegradation requirements only to activities that will result in
significant degradation is a useful approach that allows States and
Tribes to focus limited resources where they may result in the
greatest environmental protection. (emphasis added). (Id., p. 36783)
EPA considers the rationale set forth in the memorandum and these
notices of proposed rulemakings, relative to the application of
antidegradation review to activities involving a significant lowering
of water quality, to be equally applicable here.
EPA believes that the assessment of the degree to which water
quality is projected to be lowered as a result of proposed activities
should consider factors such as:
[sbull] The projected magnitude of impact on the receiving stream
(or possible effects on water bodies downstream of the receiving
stream),
[sbull] The projected reduction in the assimilative capacity of the
receiving stream(s), and potential impacts on sediment and biota,
[sbull] The magnitude of the increase in the discharge from a
facility over existing or previously permitted discharges (or existing
discharge loadings),
[sbull] The temporary nature of lowering water quality, or
[sbull] An evaluation which captures a combination of these
factors.
These factors are similar to those which EPA Region 4 included in
draft guidance to Region 4 States and Tribes on this issue. (See May 7,
1996, letter from Fritz Wagener, Chief Water Quality Standards Section
to Terry Anderson, Water Quality Branch, Kentucky Division of Water.)
However, this guidance also cautions States that the use of too high of
a threshold in a determination of de minimis degradation could unduly
restrict the number of proposed activities that are subject to a full
antidegradation review.
EPA also believes that some situations will result in little or no
impact, and these situations do not rise to the level that warrants
further consideration under the high quality waters provisions of the
antidegradation policy. Such a situation might involve the issuance of
a general KPDES permit for a category of discharges where no water
quality impact, or a very minimal water quality impact, is expected to
result from the cumulative effect of all discharges that are authorized
by the issuance of the general permit.
2. Alternatives to lowering water quality. Those most likely to be
indirectly affected by this rulemaking are persons requesting new
permits to discharge into high quality waters and current permittees
who are requesting a revision of their permits to expand their
discharges into high quality waters. If the Commonwealth determines
that the new or expanded discharge could result in a significant
lowering of water quality, the proposed regulation for implementing the
high quality water policy requires the Commonwealth before authorizing
the lowering of water quality to determine that an increased discharge
is necessary and that the lowering of water quality will accommodate
important economic or social development. In making that determination,
the Commonwealth would evaluate whether there are alternatives that
would avoid the need to lower water quality and whether the lowering of
water quality is important for economic and social development in the
area of the discharge.
EPA considers pollution prevention and enhanced treatment
alternatives analyses as an appropriate starting point and of
particular importance in an antidegradation review for both industrial
and municipal dischargers. Given the variety of engineering approaches
to pollution control, a number of options are available that could
reduce or eliminate the anticipated lowering of water quality. Some of
these include substituting less-toxic or less-bioaccumulative chemicals
for the toxic or bioaccumulative chemical. Another approach could
involve water conservation to reduce the overall volume of waste water
and possibly reduce pollutant mass loadings. Other approaches could
include more careful control of the materials in the process stream,
the recycle or reuse of waste byproducts, and operational changes to
reduce the quantities of waste. Kentucky would need to make a
determination that an alternative or combination of alternatives is
cost-effective. If cost-effective pollution prevention alternatives are
available, there would be no need for the lowering of water quality.
If the pollution prevention alternatives alone were not sufficient
to eliminate the necessity for lowering of water quality, Kentucky
would focus on ensuring that the actual degradation of the high quality
water is reduced to the greatest extent practicable. EPA expects that
Kentucky would evaluate whether the relative cost of the least costly
option for enhanced treatment would still allow the proposed activity
to occur without resulting in a significant lowering of water quality.
EPA has not established a benchmark for determining whether alternative
or enhanced treatment options are affordable. Kentucky would make the
determination.
As described in section II.B, Kentucky has adopted implementation
procedures for exceptional waters at 401 KAR 5:030 section 1.(3). These
procedures require the consideration of the following discharge and
enhanced treatment alternatives in a demonstration that allowing lower
water quality is necessary to accommodate important economic or social
development in the area in which the waters are located:
1. Discharge to other treatment facilities;
2. Use of other discharge locations;
3. Water reuse or recycling;
4. Process or treatment alternatives; and
5. On-site or subsurface disposal.
Kentucky's current regulations limit the application of this
evaluation process to exceptional waters. EPA did not propose these
specific elements for consideration in high quality waters because they
might limit the type of information that the Commonwealth could
potentially use in making a determination on the proposed lowering of
water quality. For example, a more costly alternative could be
available which might result in less water quality degradation, but the
additional cost might be considered to be reasonable, in light of the
degradation that would occur. Although EPA chose not to adopt
Kentucky's procedures for exceptional waters for today's proposal, the
Agency solicits comment on whether the Agency should use these
provisions rather than the more general ones included in today's
proposal.
3. Impact of lowering water quality. If the increased loading is
determined to be necessary, Kentucky would then have to determine that
the lowering of water quality would support important economic or
social development in the area where the discharge is to occur.
Kentucky's current regulations include a methodology (``The Interim
Economic Guidance for Water Quality Standards: Workbook,'' U.S. EPA,
1995) for an applicant to follow when requesting a new or significantly
increased discharge in exceptional waters. EPA believes that several
types of analyses could be used to determine the effect of more
stringent controls on the economic and social well-being of a
community. Therefore, the proposed rule does not limit the Commonwealth
to one methodology. The Commonwealth could develop or
[[Page 68980]]
identify guidance for applicants to use in evaluating the socioeconomic
benefits to the affected community. The Agency would be particularly
interested in receiving any peer-reviewed methodologies or literature
relevant to these analyses.
Antidegradation reviews are typically triggered when a new or
increased discharge is requested as part of a CWA section 402 KPDES
permit, CWA section 404 dredge and fill permits, and other activities
requiring a CWA 401 certification. Some States conduct antidegradation
reviews as part of their continuing planning process or consider
antidegradation reviews as part of their watershed planning process.
On October 1, 1999, Kentucky proposed revisions to the
Commonwealth's water quality standards which included specific
provisions for evaluation of new and expanded discharges to the
category of use protected waters. These proposed provisions comprised
an evaluation process for consideration of lowering water quality in
use protected waters. However, the provisions were subsequently
withdrawn from consideration prior to final adoption of the revisions
to Kentucky's antidegradation provisions on December 8, 1999.
EPA is requesting comment on whether Kentucky's detailed October 1,
1999, proposal should be part of the final Federal regulation itself,
or used to implement the broader regulatory language in today's
proposed rule. Kentucky recommended in a letter of May 24, 2001, from
Mr. Jack A. Wilson, Director, Division of Water, to Ms. Beverly
Banister, Director, Water Management Division, that EPA pursue an
approach based on the provisions formally proposed for adoption as
revisions to Kentucky water quality standards on October 1, 1999,
during the triennial review conducted by the Commonwealth. In that
proposal, Kentucky included a socioeconomic demonstration, including an
alternatives analysis, for the category of waters defined as ``use
protected'' waters, but these provisions were withdrawn prior to
adoption of the triennial review revisions to Kentucky water quality
standards. As discussed in section B, the use protected category of
waters includes any water not designated as an exceptional water or an
outstanding national resource water by the Commonwealth. Kentucky also
suggested that waters currently listed pursuant to CWA section 303(d)
as having ``impaired uses'' be excluded from high quality water
antidegradation requirements.
The eleven factors included in the October 1, 1999, proposal were:
1. The effect of the facility on an existing environmental or
public health problem;
2. The increase or avoidance of a decrease in employment;
3. The increase in production level;
4. An increase in efficiency;
5. Industrial, commercial, or residential growth;
6. Any other economic or social benefit to the community;
7. Discharge to other treatment facilities;
8. Use of other discharge locations;
9. Water reuse or recycle;
10. Process and treatment alternatives; and
11. On site or sub-surface disposal.
EPA did not choose to include this level of specificity in the
proposed rule because the list may not include all of the factors or
alternatives that might arise in every circumstance. Further, EPA's
historical position is that the States should retain some discretion in
identifying the relevant factors to examine and the threshold of
socioeconomic benefits necessary to justify a lowering of water quality
in a high quality water.
EPA is also requesting comment on another alternative to today's
proposal that would expand the number of waters in the exceptional
waters category. Under such an approach, the entire suite of Kentucky's
exceptional water implementation provisions in 401 KAR 5:030, section
1.(1)(a) and (b) would apply to all high quality waters in the
Commonwealth. As stated previously in section II.B., Kentucky's
exceptional waters implementation provisions generally include more
stringent controls than those required by EPA's regulations at 40 CFR
131.12(a)(2) for high quality waters. EPA also recognizes that the
Kentucky Division of Water has stated that portions of the
implementation provisions for exceptional waters are more detailed than
the Division would consider as applying to high quality waters.
Therefore, any consideration of this alternative for inclusion in a
final rule would be conditioned upon an agreement by the Commonwealth
that application of all exceptional water implementation provisions was
appropriate for all high quality waters in the Commonwealth.
4. Administrative process. EPA believes that the Commonwealth's
existing administrative processes for public review of proposed
decisions for waters protected under the provisions of 401 KAR 5:029
section 1.(2) may be used for all high quality waters. Kentucky's
existing mechanisms for intergovernmental coordination and public
participation processes in antidegradation decisions for the
Commonwealth's existing categories of surface waters will serve
decision-making well on all high quality waters. These existing
administrative processes are contained in 401 KAR 5:030, 401 KAR 5:075,
and sections .015, .017, .160, .270, .280, and .320 of Kentucky Revised
Statute (KRS) chapter 013A. These provisions include the following:
A copy of the public notice is mailed to:
1. The applicant,
2. EPA Region 4,
3. Federal and State agencies with jurisdiction over fish,
shellfish and wildlife resources, the Advisory Council on Historic
Preservation, Kentucky Historical Society and other appropriate
authorities, including any affected States,
4. The U.S. Corps of Engineers, the U.S. Fish and Wildlife Service,
and the National Marine Fisheries Service,
5. Any user identified in the permit application of a privately-
owned treatment works, and
6. Persons on a mailing list developed by the Kentucky Division of
Water by:
--Including those who request in writing to be on the list,
--Soliciting persons from lists of participants in past permit
proceedings in the area, and
--Notifying the public of the opportunity to be put on the mailing
list through periodic publication in the public press and in such
publications as newsletters, environmental bulletins, or State law
journals.
In addition, KDOW maintains a list of Electronic Mail addresses as
a replacement or as a supplement to its mailing list, and publishes a
notice of proposed KPDES permitting actions on the KDOW web site. For
major KPDES permits, Kentucky Division of Water is required to publish
a notice in a daily or weekly newspaper in the area potentially
affected by the facility or activity.
EPA believes that Kentucky's public participation processes are
consistent with the Agency's requirements and therefore, does not see
the need for additional implementing regulations for this purpose. For
an example of a Public Notice which includes notification that
provisions of the Commonwealth's antidegradation policy have been
applied in the development of KPDES permit conditions, please visit the
Web site: http://water.nr.state.ky.us/dow/2002-23.htm.
EPA, in developing today's proposed rule, reviewed the provisions
of Kentucky Revised Statutes chapter 013A00 section .100, which require
an administrative body in the Commonwealth to prescribe by
administrative regulation, the
[[Page 68981]]
implementation, or interpretation of a statement, policy, procedure, or
other requirement of general applicability. EPA acknowledges that many
of the details and/or options for implementing the proposed rule are
outlined in the notice of today's proposed rule. While EPA is
publishing today's proposed rule based on the conclusion that the
Commonwealth should be in a position to implement the rule as proposed,
the level of detail in any final rule will be determined after a
thorough review of all comments that relate to this statutory provision
limiting Kentucky's ability to implement the regulation.
EPA is particularly interested in receiving comments relating to
whether today's proposal provides a sufficient level of detail and
provides an adequate regulatory basis for the Commonwealth (1) to
consider protection of high quality waters in the Commonwealth, and (2)
to issue KPDES permits in cases where important social or economic
development can be demonstrated to be necessary for lowering of water
quality in these high quality waters. In light of Kentucky's statutory
provision, the Agency also seeks comment on whether some of the
guidance set forth in this notice should instead be codified as a part
of the rule.
D. What Are the Potential Cost Implications of the Proposed Rule?
The total annualized cost of today's proposed rule for both the
Commonwealth and the dischargers could range from $127,000 to
$3,000,000. The proposal does not impose any predictable impacts with
the exception that EPA's rule could increase the number of waters that
may benefit from high quality waters protection. However, economic
consequences that would flow from this proposal are uncertain because
they are wholly dependent on discretionary activities of individual
dischargers and the Commonwealth.
If the Commonwealth were to identify high quality waters as a
result of this rule, all new and existing dischargers wanting to
increase their discharges into those waters would have to ask Kentucky
to authorize the discharge, including any lowering of the water
quality. If Kentucky were to grant the request, the only cost to the
discharger would be the cost of its request (and supporting
documentation) to Kentucky.
If Kentucky were to deny the request to lower water quality, the
discharger would bear the additional cost for the controls needed to
avoid lowering the water quality. Economic consequences flowing from
EPA's proposal if finalized would depend on the Commonwealth's actions
(including waiving antidegradation reviews for increased discharges
that it determines would not significantly affect water quality). Given
the uncertainty of possible outcomes, EPA cannot fully predict the
economic consequence of its action.
Although this proposed rule does not directly impact small
entities, EPA nonetheless tried to examine the costs of having to
supply the necessary documentation to support a request for a discharge
that would lower water quality for a high quality water in Kentucky.
EPA examined the costs of submitting the analyses and concluded that,
relying on conservative assumptions, this cost could range from $2,300
to $30,000 for a minor discharger and $10,000 to $72,000 for a major
discharger. Small entities may be more likely to be classified as minor
dischargers than as major dischargers; minor dischargers may be less
likely to request increases in discharges because they discharge and
are permitted for fewer toxic pollutants, which are more likely to
adversely affect water quality in small amounts triggering an
antidegradation review. However, EPA cannot determine the number of
small entities that may incur this onetime cost, or the impact of this
cost on affected small entities (because high quality waters in the
State of Kentucky have not been identified, and the specific facilities
or types of facilities likely to be affected cannot be estimated).
Nonetheless, given the low magnitude of these costs, that they are
onetime costs, and that increased discharges are likely to be
associated with increases in production, revenues (which could result
in a change in classification from small entities to large entities),
and profits, the costs would not likely impose a significant economic
impact on a substantial number of small entities.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review)
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
1. Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Executive Order 13045 (Protection of Children From Environmental
Health Risks and Safety Risks)
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The proposed rule is not subject to the Executive Order because it
is not economically significant as defined in Executive Order 12866.
Further, it does not concern an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children.
C. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States,
[[Page 68982]]
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132. The
proposed rule would not affect the nature of the relationship between
EPA and States generally, for the rule only applies to high quality
waters in Kentucky. Further, the proposed rule would not substantially
affect the relationship of EPA and the Commonwealth of Kentucky, or the
distribution of power or responsibilities between EPA and the various
levels of government. The proposed rule would not alter the State's
authority to issue KPDES permits or the State's considerable discretion
in implementing the antidegradation high quality waters provisions.
Further, this proposed rule would not preclude Kentucky from adopting
water quality standards that meet the requirements of the CWA. Thus,
Executive Order 13132 does not apply to this rule.
Although Executive Order 13132 does not apply to this rule, EPA did
consult with representatives of the Commonwealth of Kentucky in
developing this rule. EPA met with representatives of the Kentucky
Division of Water on December 13, 2001, and on December 14, 2001, with
representatives of the Kentucky Natural Resources and Environmental
Protection Cabinet and the Division of Water on approaches addressed in
the proposal. The representatives with whom EPA met expressed strong
disagreement with the parameter-by-parameter approach to identifying
high quality waters. Their strong preference was for any Federal rule
not to limit Kentucky's approach for the identification of high quality
waters to the use of ambient chemical data. The Commonwealth's existing
antidegradation program uses biological data and information to rate
and evaluate waters. EPA is proposing to continue its longstanding
policy that would allow Kentucky to use, as appropriate, biological
data, chemical data or a combination of both types of data on a
parameter-by-parameter basis or a designational approach to identify
high quality waters.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials. EPA plans to continue to help Kentucky
adopt its own antidegradation high quality waters provisions so that
EPA will not have to finalize the rule. In addition, the proposed rule
provides an extended 120 day comment period which will help provide
additional time for the Commonwealth.
D. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have a substantial direct effect on tribal governments, on the
relationship between the Federal government and Indial tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
There are no Indian tribes in Kentucky. Thus, Executive Order 13175
does not apply to this rule. In the spirit of Executive Order 13175,
and consistent with EPA policy to promote communications between EPA
and tribal governments, EPA specifically solicits comment on this
proposed rule from tribal officials.
E. Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use)
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
F. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. It does not include any information collection, reporting
or recordkeeping requirements. Burden means the total time, effort or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purpose of
collecting, validating and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
G. Regulatory Flexibility Act, as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
The Regulatory Flexibility Act (RFA) as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C.
601 et seq.), generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations and small
governmental jurisdictions.
For purposes of assessing the impacts of today's proposed rule on
small entities, small entity is defined as: (1) A small business
according to RFA default definitions for small business (based on SBA
size standards); (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities.
The RFA requires analysis of the impacts of a rule on the small
entities subject to the rule's requirements. See United States
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).
Today's proposed rule establishes
[[Page 68983]]
no requirements applicable to small entities, and so is not susceptible
to regulatory flexibility analysis as prescribed by the RFA. (``[N]o
[regulatory flexibility] analysis is necessary when an agency
determines that the rule will not have a significant economic impact on
a substantial number of small entities that are subject to the
requirements of the rule,'' United Distribution at 1170, quoting Mid-
Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985) (emphasis
added by United Distribution court).) The Agency is thus certifying
that today's proposed rule will not have a significant economic impact
on a substantial number of small entities, within the meaning of the
RFA.
Under the CWA water quality standards program, States must adopt
water quality standards for their waters that include antidegradation
policies and implementation methods and must submit those water quality
standards to EPA for approval; if the Agency disapproves a State
standard and the State does not adopt appropriate revisions to address
EPA's disapproval, EPA must promulgate standards consistent with the
statutory requirements. EPA also has the authority to promulgate uses
and criteria in any case where the Administrator determines that a new
or revised standard is necessary to meet the requirements of the Act.
These State standards (or EPA-promulgated standards) are implemented
through various water quality control programs including the National
Pollutant Discharge Elimination System (NPDES) program, which limits
discharges to navigable waters except in compliance with an EPA permit
or a permit issued under an approved State program. The CWA requires
that all NPDES permits include any limits on discharges that are
necessary to meet applicable water quality standards.
Thus, under the CWA, EPA's promulgation of water quality standards
establishes standards that the State implements through the NPDES
permit process. The State has discretion in deciding how to meet the
water quality standards and in developing discharge limits as needed to
meet the standards. While the State's implementation of Federally
promulgated water quality standards may result in new or revised
discharge limits being placed on small entities, the standards
themselves do not apply directly to any discharger, including small
entities.
Today's proposed rule, as explained earlier, does not itself
establish any requirements that are directly applicable to small
entities. As a result of this action, the Commonwealth of Kentucky will
need to ensure that permits it issues include any limitations on
discharges necessary to comply with the antidegradation policy and
procedures for high quality waters established in the final rule. In
doing so, the Commonwealth will have a number of discretionary choices
associated with permit writing. While Kentucky's implementation of the
rule may ultimately result in some new or revised permit conditions for
some dischargers, including small entities, EPA's action today does not
impose any of these as yet unknown requirements on small entities.
H. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of small governments to have meaningful and timely input in
the development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of title II of the UMRA) for State, local or
Tribal governments or the private sector. The proposed rule imposes no
enforceable duty on the State or any local or Tribal government or the
private sector; rather this rule proposes an antidegradation policy and
implementation methods for certain high quality waters in Kentucky
which, when combined with the uses Kentucky designated for the waters
of the Commonwealth and the water quality criteria adopted to protect
the designated uses, constitute the water quality standards for high
quality waters. The Commonwealth may use these resulting water quality
standards in implementing its water quality control programs. Today's
proposed rule does not regulate or affect any entity and, therefore, is
not subject to the requirements of sections 202 and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect any small
governments. As stated, the proposed rule imposes no enforceable
requirements on any party, including small governments. Moreover, any
water quality standards, including those proposed here, apply broadly
to dischargers and are not uniquely applicable to small governments.
Thus this proposed rule is not subject to the requirements of section
203 of the UMRA.
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposal does not involve technical standards. Therefore, EPA
is not considering the use of any voluntary consensus standards. EPA
welcomes comments on this aspect of the proposed rulemaking and,
specifically, invites the public to identify potentially applicable
voluntary consensus standards and to explain why such
[[Page 68984]]
standards should be used in this regulation.
J. Endangered Species Act
Pursuant to section 7 of the Endangered Species Act (ESA), 16
U.S.C. 1536, in consultation with the U.S. Fish and Wildlife Service
(FWS) and National Marine Fisheries Service (NMFS), Federal agencies
must ensure that their actions are not likely to jeopardize the
continued existence of any listed, threatened or endangered species or
result in the destruction or adverse modification of designated
critical habitat of such species. Today's proposal would extend
antidegradation protection for waters that presently may be under-
protected by Kentucky's standards and would potentially improve the
protection afforded to threatened and endangered species.
The U.S. Fish and Wildlife Service (the Service or FWS) has been
involved in several ways during the development of the various
provisions of 401 KAR 5:030, and has supported the revision to
Kentucky's water quality standards which established 401 KAR 5:030 as
new regulatory provisions of the Commonwealth. In a letter dated
September 11, 1995, from Dr. Lee A. Barclay, Cookeville, Tennessee
Field Supervisor, to Fritz Wagener, Chief, Water Quality Standards
Section, EPA Region 4, the Service responded to EPA Region 4's request
for comments on the initially adopted antidegradation implementation
procedures, as follows: ``The Service endorses this revision to
Kentucky's water quality standards.''
In addition, EPA and the Service conducted an informal consultation
of EPA's August 30, 2000, approval of other revisions to Kentucky's
standards. The Service provided comments on the EPA's draft Biological
Evaluation of the standards revisions by letter November 1, 2000. On
July 10, 2001, the informal consultation was completed, based on the
Service's concurrence submitted from Dr. Lee A. Barclay, Cookeville,
Tennessee Field Supervisor, FWS, to Ms. Beverly H. Banister, Director,
Water Management Division, EPA Region 4, that the revisions to the
standards were not likely to adversely affect threatened or endangered
species.
The Service's endorsement of Kentucky's water quality standards
pertains only to compliance with Endangered Species Act. EPA determines
whether the State or Tribal water quality standards are in compliance
with the CWA and implementing regulations.
EPA is transmitting this proposed rule to the Service for review
and comment, concurrent with the publication of today's notice. That
transmittal constitutes EPA's initiation of informal consultation with
the Service on this proposed rule, pursuant to section 7 of the
Endangered Species Act and its implementing regulations. EPA will
continue to work closely with the Service to ensure the final rule will
not adversely affect threatened or endangered species.
K. Plain Language
Executive order 12886 directs each agency to write all rules in
plain language. We invite your comments on how to make this proposed
rule easier to understand. For example:
--Have we organized the material to suit your needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that isn't clear?
--Would a different (grouping and order of sections, use of headings,
paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--What else could we do to make the rule easier to understand?
List of Subjects in 40 CFR Part 131
Environmental protection, Indian lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: November 7, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, EPA proposes to amend 40
CFR part 131 as follows:
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--[Amended]
2. Section 131.39 is added to read as follows:
Sec. 131.39 Kentucky.
(a) What antidegradation policy applies to high quality waters in
the Commonwealth of Kentucky? (1) Where the quality of the water is
better than levels necessary to support propagation of fish, shellfish,
and wildlife and recreation in and on the water, the Commonwealth of
Kentucky (hereafter, Commonwealth or Kentucky) shall maintain and
protect that quality unless Kentucky finds, after full satisfaction of
the intergovernmental coordination and public participation provisions
of the Commonwealth's continuing planning process, that allowing lower
water quality is necessary to accommodate important economic or social
development in the area in which the water is located.
(2) Before allowing lower water quality, the Commonwealth shall
ensure that all measures to fully protect existing uses are
implemented.
(3) Before allowing lower water quality, the Commonwealth shall
ensure that the most protective statutory and regulatory requirements
for all new and existing point sources and all cost-effective and
reasonable best management practices for nonpoint source control shall
be achieved.
(b) What are high quality waters? High quality waters include any
surface water of the United States within the Commonwealth of Kentucky
where the quality of the water is better than that necessary to support
propagation of fish, shellfish, and wildlife and recreation in and on
the water, except for waters regulated by Kentucky under 401 Kentucky
Administrative Register 5:030 sections 1.(1)(a) and (b).
(c) How will the Commonwealth evaluate requests to lower water
quality? The Commonwealth shall evaluate the following information when
deciding whether to approve a request to lower water quality in a high
quality water:
(1) Alternatives to the Request to Lower Water Quality. Any cost
effective pollution prevention alternatives, enhanced treatment
techniques, or other alternatives that are available to the entity,
that would eliminate or significantly reduce the extent to which the
increased loading results in a lowering of water quality.
(2) Important Economic or Social Development. The economic or
social development and the benefits to the area in which the waters are
located that will be foregone if the lowering of water quality is not
allowed.
[FR Doc. 02-28922 Filed 11-13-02; 8:45 am]
BILLING CODE 6560-50-P