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Energy and Environment Cabinet

Division of Water

Division of Water
Water Quality Standards

As part of the Division of Water’s triennial review of Kentucky’s water quality standards, the division made notice of the agency’s proposal to update Kentucky’s water quality criteria for selenium to reflect the best available science. The division requested and received public comments on the proposed amendments to the water quality criteria for selenium.

The division has reviewed and considered all of the comments received during the public comment period. On April 3, 2013 the division filed with the Legislative Research Commission a Letter of Agency Amendment and an Agency Amendment proposing to modify the water quality criteria for selenium. This filing included the division’s technical document outlining the process it used in developing the proposed water quality criteria for selenium and a Statement of Consideration summarizing comments received by the division and the agency’s response. These documents are provided below.

The regulation, 401 KAR 10:031 Amended after Comment, including the Agency Amendment proposing to modify the water quality criteria for selenium will be heard by the Administrative Regulation Review Subcommittee on Tuesday, April 9, in Room 149 of the Capitol Annex at 1 p.m.

The Clean Water Act required states to establish water quality standards and then perform reviews every three years.
 
The Division of Water is proposing amendments to the following administrative regulations as part of the triennial review of water quality standards required by the Clean Water Act Section 303(c) and 40 CFR Section 131.20.

 
401 KAR 10:001 Definitions for 401 KAR Chapter 10.
401 KAR 10:026 Designation of uses of surface waters.
401 KAR 10:029 General provisions.
401 KAR 10:030 Antidegradation policy implementation methodology.
401 KAR 10:031 Surface water standards.
 
401 KAR 10:001- The division is proposing one amendment, the definition for “eutrophication.”

401 KAR 10:026- The division is proposing to amend this chapter by updating Table B with current NHD stream mile points that identify the locations of water withdrawal and where the criteria for domestic water supply designated uses are implemented.  There are 27 new Outstanding State Resource Waters (OSRWs) proposed.  This includes 11 streams or segments of streams that automatically qualify as OSRWs because they serve as habitat for federally listed threatened or endangered species, one stream that automatically qualifies as OSRW because it is within a registered natural area in accordance with 400 KAR 2:080, and 15 streams or segments that quality under permissible consideration in Section 8(1)(b)2.  Those 15 streams or segments occur in relatively undisturbed watersheds and contain outstanding water quality characteristics.  A correction to an OSRW segment of the West Fork Red River is proposed to appropriately delineate the CAH and OSRW segments.    There are 17 waterbodies in 401 KAR 10:026 Table C that have administrative edits that do not change designated uses, but primarily update stream segment mile points to reflect the most recent information contained in the current USGS National Hydrography Dataset (NHD), 1:24,000 scale. 

401 KAR 10:029- The division is not proposing to amend this chapter, but is noticing this regulation to receive public review and comment as obligated under the Clean Water Act.
 
401 KAR 10:030- The division is proposing to add 16 streams or stream segments as exceptional waterbodies in Table 2.   Updates are made to 19 streams or stream segments in Table 1 and Table 2 for segment mile point reconciliation corresponding to current NHD version updates, or for other administrative purposes.  Additionally, the division is proposing to amend Section 1 to clarify that an OSRW shall not be categorized as impaired water for the purpose of antidegradation review.
 
401 KAR 10:031- The division proposes to amend the nutrients criterion for clarification purposes, adopt federal water quality standards for acrolein and phenol, and eliminate the warm water aquatic habitat acute criterion for selenium.  On June 2, 2000, the U.S. EPA withdrew the acute criterion for selenium it had promulgated for the Great Lakes basin and recommended national water quality program.  The withdrawal was in accordance with a ruling by the U.S. Court of Appeals.  The interstate organization for pollution control on the Ohio River, ORSANCO, has proposed to withdraw the selenium acute criterion due to the integrity of its development procedures.  Until the U.S. EPA promulgates new criteria that accounts for the latest science and complexity of the causative selenium species that result in acute toxicity, the division proposes to withdraw that criterion. In addition to the provision for automatic inclusion of waterbodies that support federally listed threatened or endangered species as OSRWs, the proposed amendments to 401 KAR 10:031 clarify conditions for waterbodies that are automatically included as OSRWs.  This will ensure that all waterbodies meeting the automatic inclusion test under 401 KAR 10:031 Section 8 have exceptional water quality and/or habitat. The division is proposing to amend 401 KAR10:031 Section 9 (1)(a) to clarify that the dissolved oxygen criteria applies in-stream and not at the end of pipe.

The regulations can be found on the Legislative Research Commission Web site.

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