401 KAR 10:031. Surface water standards.
RELATES TO: KRS 146.200-146.360,
146.410-146.535, 146.550-146.570, 146.600-146.619, 146.990, 224.01-010,
224.01-400, 224.16-050, 224.16-070, 224.70-100-224.70-140,
224.71-100-224.71-145, 224.73-100-224.73-120,
STATUTORY AUTHORITY: KRS 146.220,
146.241, 146.270, 146.410, 146.450, 146.460, 146.465, 224.10-100, 224.16-050,
224.16-060, 224.70-100, 224.70-110, 40 C.F.R. Part 131, 16 U.S.C. 1271-1287,
1531-1544, 33 U.S.C. 1311, 1313, 1314, 1341
NECESSITY, FUNCTION, AND CONFORMITY: KRS
224.10-100 requires the cabinet to develop and conduct a comprehensive program
for the management of water resources and to provide for the prevention,
abatement, and control of water pollution. This administrative regulation and
401 KAR 10:001, 10:026, 10:029, and 10:030 establish procedures to protect the
surface waters of the Commonwealth, and thus protect water resources. This
administrative regulation establishes water quality standards that consist of
designated legitimate uses of the surface waters of the Commonwealth and the
associated water quality criteria necessary to protect those uses. These water
quality standards are minimum requirements that apply to all surface waters in
the Commonwealth of Kentucky in order to maintain and protect them for
designated uses. These water quality standards are subject to periodic review
and revision in accordance with the Clean Water Act, 33 U.S.C. 1251-1387, 40
C.F.R. 131, and KRS Chapter 224.
Section 1. Nutrients Criterion. Nutrients
shall not be elevated in a surface water to a level that results in a eutrophication
problem.
Section 2. Minimum Criteria Applicable to
All Surface Waters. (1) The following minimum water quality criteria shall be
applicable to all surface waters including mixing zones, with the exception
that toxicity to aquatic life in mixing zones shall be subject to the provisions
of 401 KAR 10:029, Section 4. Surface waters shall not be aesthetically or
otherwise degraded by substances that:
(a) Settle to form objectionable
deposits;
(b) Float as debris, scum, oil, or other
matter to form a nuisance;
(c) Produce objectionable color, odor,
taste, or turbidity;
(d) Injure, are chronically or acutely
toxic to or produce adverse physiological or behavioral responses in humans,
animals, fish, and other aquatic life;
(e) Produce undesirable aquatic life or
result in the dominance of nuisance species;
(f)1. Cause fish flesh tainting.
2. The concentration of phenol shall not
exceed 300 µg/L as an instream value.
(2) The water quality criteria for the
protection of human health related to fish consumption in Table 1 of Section 6
of this administrative regulation are applicable to all surface water at the
edge of the assigned mixing zones except for those points where water is withdrawn
for domestic water supply use.
(a) The criteria are established to
protect human health from the consumption of fish tissue, and shall not be
exceeded.
(b) For those substances associated with
a cancer risk, an acceptable risk level of not more than one (1) additional
cancer case in a population of 1,000,000 people, or 1 x 10-6 shall
be utilized to establish the allowable concentration.
Section 3. Use Designations and
Associated Criteria. (1) Surface waters may be designated as having one (1) or
more legitimate uses and associated criteria protective of those uses. Those
uses are listed in 401 KAR 10:026. Nothing in this administrative regulation
shall be construed to prohibit or impair the legitimate beneficial uses of
these waters. The criteria in Sections 2, 4, 6, and 7 of this administrative
regulation represent minimum conditions necessary to:
(a) Protect surface waters for the
indicated use; and
(b) Protect human health from fish
consumption.
(2) On occasion, surface water quality
may be outside of the limits established to protect designated uses because of
natural conditions. If this occurs during periods when stream flows are below
the flow that is used by the cabinet to establish effluent limitations for
wastewater treatment facilities, a discharger shall not be considered a
contributor to instream violations of water quality standards, if treatment
results in compliance with permit requirements.
(3) Stream flows for water quality-based
permits. The following stream flows shall be utilized if deriving KPDES permit
limitations to protect surface waters for the listed uses and purposes:
(a) Aquatic life protection shall be 7Q10;
(b) Water-based recreation protection
shall be 7Q10;
(c) Domestic water supply protection
shall be determined at points of withdrawal as:
1. The harmonic mean for cancer-linked
substances; and
2. 7Q10 for noncancer-linked
substances;
(d) Human health protection from fish
consumption and for changes in radionuclides shall be the harmonic mean; and
(e) Protection of aesthetics shall be 7Q10.
Section 4. Aquatic Life. (1) Warm water
aquatic habitat. The following parameters and associated criteria shall apply
for the protection of productive warm water aquatic communities, fowl, animal
wildlife, arboreous growth, agricultural, and industrial uses:
(a) Natural alkalinity as CaCO3
shall not be reduced by more than twenty-five (25) percent.
1. If natural alkalinity is below twenty
(20) mg/L CaCO3, there shall not be a reduction below the natural
level.
2. Alkalinity shall not be reduced or
increased to a degree that may adversely affect the aquatic community;
(b) pH shall not be less than six and
zero-tenths (6.0) nor more than nine and zero-tenths (9.0) and shall not
fluctuate more than one and zero-tenths (1.0) pH unit over a period of
twenty-four (24) hours;
(c) Flow shall not be altered to a degree
that will adversely affect the aquatic community;
(d) Temperature shall not exceed
thirty-one and seven-tenths (31.7) degrees Celsius (eighty-nine (89) degrees
Fahrenheit).
1. The normal daily and seasonal
temperature fluctuations that existed before the addition of heat due to other
than natural causes shall be maintained.
2. The cabinet may determine allowable
surface water temperatures on a site-specific basis utilizing available data
that shall be based on the effects of temperature on the aquatic biota that
utilize specific surface waters of the commonwealth and that may be affected by
person-induced temperature changes.
a. Effects on downstream uses shall also
be considered in determining site-specific temperatures.
b. Values in the following table are
guidelines for surface water temperature.
Month/Date
Period Average
Instantaneous Maximum
(°F)
(°C)
(°F)
(°C)
January 1-31
45
7
50
10
February 1-29
45
7
50
10
March 1-15
51
11
56
13
March 16-31
54
12
59
15
April 1-15
58
14
64
18
April 16-30
64
18
69
21
May 1-15
68
20
73
23
May 16-31
75
24
80
27
June 1-15
80
27
85
29
June 16-30
83
28
87
31
July 1-31
84
29
89
32
August 1-31
84
29
89
32
September 1-15
84
29
87
31
September 16-30
82
28
86
30
October 1-15
77
25
82
28
October 16-31
72
22
77
25
November 1-30
67
19
72
22
December 1-31
52
11
57
14
3. A successful demonstration concerning
thermal discharge limits carried out pursuant to Section 316(a) of the Clean
Water Act, 33 U.S.C. 1326, shall constitute compliance with the temperature
requirements of this subsection. A successful demonstration assures the
protection and propagation of a balanced indigenous population of shellfish,
fish, and wildlife in or on the water into which the discharge is made;
(e) Dissolved oxygen.
1. a. Dissolved oxygen shall be
maintained at a minimum concentration of five and zero-tenths (5.0) mg/L as a
twenty-four (24) hour average in water with WAH use;
b. The instantaneous minimum shall not be
less than four and zero-tenths (4.0) mg/L in water with WAH use.
2. The dissolved oxygen concentration
shall be measured at mid-depth in waters having a total depth of ten (10) feet
or less and at representative depths in other waters;
(f) Total dissolved solids or specific
conductance. Total dissolved solids or specific conductance shall not be
changed to the extent that the indigenous aquatic community is adversely
affected;
(g) Total suspended solids. Total
suspended solids shall not be changed to the extent that the indigenous aquatic
community is adversely affected;
(h) Settleable solids. The addition of
settleable solids that may alter the stream bottom so as to adversely affect
productive aquatic communities shall be prohibited;
(i) Ammonia. The concentration of the
un-ionized form shall not be greater than 0.05 mg/L at any time instream after
mixing. Un-ionized ammonia shall be determined from values for total ammonia-N,
in mg/L, pH and temperature, by means of the following equation:
Y = 1.2 (Total ammonia-N)/(1 + 10pKa-pH)
pka = 0.0902 + (2730/(273.2 +
Tc))
Where:
Tc = temperature, degrees
Celsius.
Y = un-ionized ammonia (mg/L);
(j) Toxics.
1. The allowable instream concentration
of toxic substances, or whole effluents containing toxic substances, which are
noncumulative or nonpersistent with a half-life of less than ninety-six (96)
hours, shall not exceed:
a. One-tenth (0.1) of the ninety-six (96)
hour median lethal concentration (LC50) of representative indigenous
or indicator aquatic organisms; or
b. A chronic toxicity unit of 1.00
utilizing the twenty-five (25) percent inhibition concentration, or LC25.
2. The allowable instream concentration
of toxic substances, or whole effluents containing toxic substances, which are
bioaccumulative or persistent, including pesticides, if not specified elsewhere
in this section, shall not exceed:
a. 0.01 of the ninety-six (96) hour
median lethal concentration (LC50) of representative indigenous or
indicator aquatic organisms; or
b. A chronic toxicity unit of 1.00
utilizing the IC25.
3. In the absence of acute criteria for
pollutants listed in Table 1 of Section 6 of this administrative regulation,
for other substances known to be toxic but not listed in this administrative
regulation, or for whole effluents that are acutely toxic, the allowable
instream concentration shall not exceed the LC1 or one-third (1/3)
LC50 concentration derived from toxicity tests on representative
indigenous or indicator aquatic organisms or exceed three-tenths (0.3) acute toxicity
units.
4. If specific application factors have
been determined for a toxic substance or whole effluent such as an acute to
chronic ratio or water effect ratio, they may be used instead of the one-tenth
(0.1) and 0.01 factors listed in this subsection upon demonstration by the applicant
that the application factors are scientifically defensible.
5. Allowable instream concentrations for
specific pollutants for the protection of warm water aquatic habitat are listed
in Table 1 of Section 6 of this administrative regulation. These concentrations
are based on protecting aquatic life from acute and chronic toxicity and shall
not be exceeded; and
(k) Total residual chlorine. Instream
concentrations for total residual chlorine shall not exceed an acute criteria
value of nineteen (19) µg/L or a chronic criteria value of eleven (11) µg/L.
(2) Cold water aquatic habitat. The
following parameters and criteria are for the protection of productive cold
water aquatic communities and streams that support trout populations, whether
self-sustaining or reproducing, on a year-round basis. The criteria adopted for
the protection of warm water aquatic life also apply to the protection of cold
water habitats with the following additions:
(a) Dissolved oxygen.
1. A minimum concentration of six and
zero-tenths (6.0) mg/L as a twenty-four (24) hour average and five and
zero-tenths (5.0) mg/L as an instantaneous minimum shall be maintained.
2. In lakes and reservoirs that support
trout, the concentration of dissolved oxygen in waters below the epilimnion
shall be kept consistent with natural water quality; and
(b) Temperature. Water temperature shall
not be increased through human activities above the natural seasonal
temperatures.
Section 5. Domestic Water Supply Use.
Maximum allowable in-stream concentrations for specific substances, to be
applicable at the point of withdrawal, as established in 401 KAR 10:026,
Section 5(2)(b), Table B, for use for domestic water supply from surface water
sources are specified in Table 1 of Section 6 of this administrative regulation
and shall not be exceeded.
Section 6. Pollutants. (1) Allowable
instream concentrations of pollutants are listed in Table 1 of this section.
Table 1
Pollutant
CAS1 Number
Water Quality Criteria µg/L2
Human Health:
Warm Water Aquatic Habitat3:
DWS4
Fish5
Acute6
Chronic7
Acenaphthene
83329
670
990
-
-
Acrolein
107028
190
6
3
3
Acrylonitrile
107131
0.051
0.25
-
-
Aldrin
309002
0.000049
0.000050
3.0
-
alpha-BHC
319846
0.0026
0.0049
-
-
alpha-Endosulfan
959988
62
89
0.22
0.056
Anthracene
120127
8,300
40,000
-
-
Antimony
7440360
5.6
640
-
-
Arsenic
7440382
10.0
-
340
150
Asbestos
1332214
7 million fibers/L
-
-
-
Barium
7440393
1,000
-
-
-
Benzene
71432
2.2
51
-
-
Benzidine
92875
0.000086
0.00020
-
-
Benzo(a)anthracene
56553
0.0038
0.018
-
-
Benzo(a)pyrene
50328
0.0038
0.018
-
-
Benzo(b)fluoranthene
205992
0.0038
0.018
-
-
Benzo(k)fluoranthene
207089
0.0038
0.018
-
-
Beryllium
7440417
4
-
-
-
Beta-BHC
319857
0.0091
0.017
-
-
Beta-Endosulfan
33213659
62
89
0.22
0.056
bis(chloromethyl)ether
542881
0.00010
0.00029
-
-
bis(2-chloroethyl)ether
111444
0.030
0.53
-
-
bis(2-chloroisopropyl)ether
108601
1,400
65,000
-
-
bis(2-ethylhexyl)phthalate
117817
1.2
2.2
-
-
Bromoform
75252
4.3
140
-
-
Butylbenzyl phthalate
85687
1,500
1,900
-
-
Cadmium
7440439
5
-
e(1.0166 (ln Hard*)-3.924)
e(0.7409 (ln Hard*)-
4.719)
Carbon tetrachloride
56235
0.23
1.6
-
-
Chlordane
57749
0.00080
0.00081
2.4
0.0043
Chloride
16887006
250,000
-
1,200,000
600,000
Chlorobenzene
108907
130
1600
-
-
Chlorodibromomethane
124481
0.40
13
-
-
Chloroform
67663
5.7
470
-
-
Chloropyrifos
2921882
-
-
0.083
0.041
Chromium
N/A
100
-
-
-
Chromium (III)
16065831
-
-
e(0.8190 (ln Hard*)+
3.7256)
e(0.8190 (ln Hard*)+
0.6848)
Chromium (VI)
18540299
-
-
16
11
Chrysene
218019
0.0038
0.018
-
-
Color
N/A
75 Platinum Cobalt Units
-
-
-
Copper
7440508
1,300
-
e(0.9422 (ln Hard*)-
1.700)
e(0.8545 (ln Hard*)-
1.702)
Cyanide, Free
57125
140
140
22
5.2
Demeton
8065483
-
-
-
0.1
Diazinon
333415
0.17
0.17
Dibenzo(a,h)anthracene
53703
0.0038
0.018
-
-
Dichlorobromomethane
75274
0.55
17
-
-
Dieldrin
60571
0.000052
0.000054
0.24
0.056
Diethyl phthalate
84662
17,000
44,000
-
-
Dimethyl phthalate
131113
270,000
1,100,000
-
-
Di-n-butyl phthalate
84742
2,000
4,500
-
-
Dinitrophenols
25550587
69
5300
-
-
Endosulfan sulfate
1031078
62
89
-
-
Endrin
72208
0.059
0.060
0.086
0.036
Endrin aldehyde
7421934
0.29
0.30
-
-
Ethylbenzene
100414
530
2100
-
-
Fluoranthene
206440
130
140
-
-
Fluorene
86737
1,100
5,300
-
-
Fluoride
N/A
4,000
-
-
-
Guthion
86500
-
-
-
0.01
Heptachlor
76448
0.000079
0.000079
0.52
0.0038
Heptachlor epoxide
1024573
0.000039
0.000039
0.52
0.0038
Hexachlorobenzene
118741
0.00028
0.00029
-
-
Hexachlorobutadiene
87683
0.44
18
-
-
Hexachlorocyclo-hexane-Technical
319868
0.0123
0.0414
-
-
Hexachlorocyclopentadiene
77474
40
1100
-
-
Hexachloroethane
67721
1.4
3.3
-
-
Ideno(1,2,3-cd)pyrene
193395
0.0038
0.018
-
-
Iron8
7439896
300
-
4,000
1,000
Isophorone
78591
35.0
960
-
-
Lead
7439921
15
-
e(1.273 (ln Hard*)-
1.460)
e(1.273 (ln Hard*)-
4.705)
Lindane (gamma-BHC)
58899
0.98
1.8
0.95
Malathion
121755
-
-
-
0.1
Mercury
7439976
2.0
0.051
1.4
0.77
Methylmercury
22967926
0.3 mg/Kg
Methoxychlor
72435
100
-
-
0.03
Methylbromide
74839
47
1,500
-
-
Methylene Chloride
75092
4.6
590
-
-
Mirex
2385855
-
-
-
0.001
Nickel
7440020
610
4,600
e(0.8460 (ln Hard*)+
2.255)
e(0.8460
(ln Hard*)+
0.0584)
Nitrate (as N)
14797558
10,000
-
-
-
Nitrobenzene
98953
17
690
-
-
Nitrosamines, Other
N/A
0.0008
1.24
-
-
N-Nitrosodibutylamine
924163
0.0063
0.22
-
-
N-Nitrosodiethylamine
55185
0.0008
1.24
-
-
N-Nitrosodimethylamine
62759
0.00069
3.0
-
-
N-Nitrosodi-n-Propylamine
621647
0.0050
0.51
-
-
N-Nitrosodiphenylamine
86306
3.3
6.0
-
-
N-Nitrosopyrrolidine
930552
0.016
34
-
-
Nonylphenol
1044051
28
6.6
Parathion
56382
-
-
0.065
0.013
Pentachlorobenzene
608935
1.4
1.5
-
-
Pentachlorophenol
87865
0.27
3.0
e(1.005
(pH)-4.869)
e(1.005
(pH)-5.134)
Phenol
108952
21,000
860,000
-
-
Polychlorinated Biphenyls (PCBs)
N/A
0.000064
0.000064
-
0.014
Pyrene
129000
830
4,000
-
-
Selenium
7782492
170
4,200
2589
8.610, 11
19.312
Silver
7440224
-
-
e(1.72 (ln Hard*)-6
.59)
-
Sulfate
N/A
250,000
-
-
-
Hydrogen Sulfide, Undissociated
7783064
-
-
-
2.0
Tetrachloroethylene
127184
0.69
3.3
-
-
Thallium
7440280
0.24
0.47
-
-
Toluene
108883
1300
15,000
-
-
Total Dissolved Solids
N/A
250,000
-
-
-
Toxaphene
8001352
0.00028
0.00028
0.73
0.0002
Tributyltin (TBT)
0.46
0.072
Trichloroethylene
79016
2.5
30
-
-
Vinyl Chloride
75014
0.025
2.4
-
-
Zinc
7440666
7,400
26,000
e(0.8473 (ln Hard*)+
0.884)
e(0.8473 (ln Hard*)+
0.884)
1,1-dichloroethylene
75354
330
7100
-
-
1,1,1-trichloroethane
71556
200
-
-
-
1,1,2-trichloroethane
79005
0.59
16
-
-
1,1,2,2-tetrachloroethane
79345
0.17
4.0
-
-
1,2-dichlorobenzene
95501
420
1300
-
-
1,2-dichloroethane
107062
0.38
37
-
-
1,2-dichloropropane
78875
0.50
15
-
-
1,2-diphenylhydrazine
122667
0.036
0.20
-
-
1,2-trans-dichloroethylene
156605
140
10,000
-
-
1,2,4-trichlorobenzene
120821
35
70
-
-
1,2,4,5-tetrachlorobenzene
95943
0.97
1.1
-
-
1,3-dichlorobenzene
541731
320
960
-
-
1,3-dichloropropene
542756
0.34
21
-
-
1,4-dichlorobenzene
106467
63
190
-
-
2-chloronaphthalene
91587
1,000
1,600
-
-
2-chlorophenol
95578
81
150
-
-
2-methyl-4,6-dinitrophenol
534521
13
280
-
-
2,3,7,8-TCDD (Dioxin)
1746016
5.0 E - 9
5.1 E - 9
-
-
2,4-D
94757
100
-
-
-
2,4-dichlorophenol
120832
77
290
-
-
2,4-dimethylphenol
105679
380
850
-
-
2,4-dinitrophenol
51285
69
5,300
-
-
2,4-dinitrotoluene
121142
0.11
3.4
-
-
2,4,5-TP (Silvex)
93721
10
-
-
-
2,4,5-trichlorophenol
95954
1,800
3,600
-
-
2,4,6-trichlorophenol
88062
1.4
2.4
-
-
3,3’-dichlorobenzidine
91941
0.021
0.028
-
-
4,4’-DDD
72548
0.00031
0.00031
-
-
4,4’-DDE
72559
0.00022
0.00022
-
-
4,4’-DDT
50293
0.00022
0.00022
1.1
0.001
1CAS = Chemical Abstracts
Service.
2Water quality criteria
in µg/L unless reported in different units.
3Metal concentrations
shall be total recoverable metals to be measured in an unfiltered sample,
unless it can be demonstrated that a more appropriate analytical technique is
available that provides a measurement of that portion of the metal present
which causes toxicity to aquatic life.
4DWS = Domestic Water
Supply Source.
5Fish = Fish Consumption.
6Acute criteria =
protective of aquatic life based on one (1) hour exposure that does not exceed
the criterion for a given pollutant.
7Chronic = protective of
aquatic life based on ninety-six (96) hour exposure that does not exceed the
criterion of a given pollutant more than once every three (3) years on the
average.
8The chronic criterion
for iron shall not exceed three and five tenths (3.5) mg/L (thirty-five hundred
µg/L) if aquatic life has not been shown to be adversely affected.
9If the concentration of
sulfate is less than forty-four (44) mg/L, the alternate acute water quality
standard for selenium may be obtained by calculating the Criterion Maximum
Concentration (CMC) using the concentrations of selenite and selenate as follows:
CMC = 1/, where
CMC1 is 258 µg/L for selenite and CMC2 is e(0.5812 + 3.357)µg/L for
selenate, and f1 is the fraction of total selenium that is selenite and f2 is
the fraction of total selenium that is selenate.
10This value is the
concentration in µg/g (dry weight) of whole fish tissue.
11 A concentration of five
and zero tenths (5.0) µg/L or greater selenium in the water column shall
trigger further sampling and analysis of whole-body fish tissue or alternately
of fish egg/ovary tissue.
12This value is the
concentration in µg/g (dry weight) of fish egg/ovary tissue.
*Hard = Hardness as mg/L
CaCO3.
(2) The following additional criteria for
radionuclides shall apply for Domestic Water Supply use:
(a) The gross total alpha particle
activity, including radium-226 but excluding radon and uranium, shall not
exceed fifteen (15) pCi/L;
(b) Combined radium-226 and radium-228
shall not exceed five (5) pCi/L. Specific determinations of radium-226 and
radium-228 are not necessary if dissolved gross alpha particle activity does
not exceed five (5) pCi/L;
(c) The concentration of total gross beta
particle activity shall not exceed fifty (50) pCi/L;
(d) The concentration of tritium shall
not exceed 20,000 pCi/l;
(e) The concentration of total
Strontium-90 shall not exceed eight (8) pCi/L; or
(f) The concentration of uranium shall
not exceed thirty (30) µg/l.
Section 7. Recreational Waters. (1) Primary
contact recreation water. The following criteria shall apply to waters
designated as primary contact recreation use during the primary contact
recreation season of May 1 through October 31:
(a) Fecal coliform content or Escherichia
coli content shall not exceed 200 colonies per 100 ml or 130 colonies per 100
ml respectively as a geometric mean based on not less than five (5) samples
taken during a thirty (30) day period. Content also shall not exceed 400
colonies per 100 ml in twenty (20) percent or more of all samples taken during
a thirty (30) day period for fecal coliform or 240 colonies per 100 ml for
Escherichia coli. Fecal coliform criteria listed in subsection (2)(a) of this
section shall apply during the remainder of the year; and
(b) pH shall be between six and
zero-tenths (6.0) to nine and zero-tenths (9.0) and shall not change more than
one and zero-tenths (1.0) pH unit within this range over a period of
twenty-four (24) hours.
(2) Secondary contact recreation water.
The following criteria shall apply to waters designated for secondary contact
recreation use during the entire year:
(a) Fecal coliform content shall not
exceed 1,000 colonies per 100 ml as a thirty (30) day geometric mean based on
not less than five (5) samples; nor exceed 2,000 colonies per 100 ml in twenty
(20) percent or more of all samples taken during a thirty (30) day period; and
(b) pH shall be between six and
zero-tenths (6.0) to nine and zero-tenths (9.0) and shall not change more than
one and zero-tenths (1.0) pH unit within this range over a period of twenty-four
(24) hours.
Section 8. Outstanding State Resource
Waters. This designation category includes certain unique waters of the commonwealth.
(1) Water for inclusion.
(a) Automatic inclusion. The following
surface waters shall automatically be included in this category:
1. Waters designated pursuant to the
Kentucky Wild Rivers Act, KRS 146.200-146.360;
2. Waters designated pursuant to the
Federal Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287;
3. Waters that support federally
recognized endangered or threatened species pursuant to the Endangered Species
Act of 1973, as amended, 16 U.S.C. 1531-1544.
(b) Permissible consideration. Other
surface waters shall be considered for inclusion in this category if:
1. The surface waters flow through or are
bounded by state or federal forest land, or are of exceptional aesthetic or
ecological value or are within the boundaries of national, state, or local
government parks, or are a part of a unique geological, natural, or historical
area recognized by state or federal designation; or
2. The surface water is a component part
of an undisturbed or relatively undisturbed watershed that can provide basic
scientific data and possess outstanding water quality characteristics, or
fulfill two (2) of the following criteria:
a. Support a diverse or unique native
aquatic flora or fauna;
b. Possess physical or chemical
characteristics that provide an unusual and uncommon aquatic habitat; or
c. Provide a unique aquatic environment
within a physiographic region.
(2) Outstanding state resource waters
protection. The designation of certain waters as outstanding state resource
waters shall fairly and fully reflect those aspects of the waters for which the
designation is proposed. The cabinet shall determine water quality criteria for
these waters as follows:
(a) At a minimum, the criteria of Section
2 and Table 1 of Section 6 of this administrative regulation and the
appropriate criteria associated with the stream use designation assignments in
401 KAR 10:026, shall be applicable to these waters.
(b) Outstanding state resource waters
that are listed as Exceptional Waters in 401 KAR 10:030, Section 1(2) shall
have dissolved oxygen maintained at a minimum concentration of six and
zero-tenths (6.0) mg/L as a twenty-four (24) hour average and an instantaneous
minimum concentration of not less than five and zero-tenths (5.0) mg/L.
(c)1. If the values identified for an
outstanding state resource water are dependent upon or related to instream
water quality, the cabinet shall review existing water quality criteria and
determine if additional criteria or more stringent criteria are necessary for
protection, and evaluate the need for the development of additional data upon
which to base the determination.
2. Existing water quality and habitat
shall be maintained and protected in those waters designated as outstanding
state resource waters that support federally threatened and endangered species
of aquatic organisms, unless it can be demonstrated that lowering of water
quality or a habitat modification will not have a harmful effect on the
threatened or endangered species that the water supports.
(d) Adoption of more protective criteria
in accordance with this section shall be listed with the respective stream
segment in 401 KAR 10:026.
(3) Determination of designation.
(a) A person may present a proposal to
designate certain waters pursuant to this section. Documentation requirements
in support of an outstanding state resource water proposal shall contain those
elements outlined in 401 KAR 10:026, Section 3(3)(a) through (h).
(b)1. The cabinet shall review the
proposal and supporting documentation to determine if the proposed waters
qualify as outstanding state resource waters within the criteria established by
this administrative regulation.
2. The cabinet shall document the
determination to deny or to propose redesignation, and a copy of the decision
shall be served upon the petitioner and other interested parties.
(c) After considering all of the
pertinent data, a redesignation, if appropriate, shall be made pursuant to 401
KAR 10:026.
Section 9. Water Quality Criteria for the
Main Stem of the Ohio River. (1) The following criteria apply to the main stem
of the Ohio River from its juncture with the Big Sandy River at River Mile
317.1 to its confluence with the Mississippi River, and shall not be exceeded.
(2) These waters shall be subject to all
applicable provisions of 401 KAR 10:001, 10:026, 10:029, 10:030, and this
administrative regulation, except for those criteria in paragraphs (a) and (b)
of this subsection.
(a) Dissolved oxygen. Instream concentrations
shall average at least five and zero-tenths (5.0) mg/L per calendar day and
shall not be less than four and zero-tenths (4.0) mg/L except during the April
15 - June 15 spawning season when a minimum of five and one-tenth (5.1) mg/L
shall be maintained.
(b) Maximum allowable instream
concentrations for nitrite-nitrogen for the protection of human health shall be
one and zero-tenths (1.0) mg/L and shall be met at the edge of the assigned mixing
zone.
Section 10. Exceptions to Criteria for
Specific Surface Waters. (1) The cabinet may grant exceptions to the criteria
contained in Sections 2, 4, 6, 7, 8, and 9 of this administrative regulation
for specific surface water upon demonstration by an applicant that maintenance
of applicable water quality criteria is not attainable or scientifically valid
but the use designation is still appropriate.
(2) The analysis shall show that the
water quality criteria cannot be reasonably achieved, either on a seasonal or
year-round basis due to natural conditions or site-specific factors differing
from the conditions used to derive criteria in Sections 2, 4, 6, 7, 8, and 9 of
this administrative regulation.
(a) Site-specific criteria shall be developed
by the applicant utilizing toxicity tests, indicator organisms, and application
factors that shall be consistent with those outlined in Chapter 3 of Water
Quality Standards Handbook, EPA, 1994.
(b) In addition, an applicant shall
supply the documentation listed in 401 KAR 10:026, Section 3.
(3) An exception to criteria listed in
Table 1 of Section 6 of this administrative regulation for the protection of
human health from the consumption of fish tissue may be granted if it is
demonstrated that natural, ephemeral, intermittent, or low flow conditions or
water levels preclude the year-round support of a fishery, unless these conditions
may be compensated for by the discharge of sufficient volume of effluent
discharges.
(4) Before granting an exception to water
quality criteria, the cabinet shall ensure that the water quality standards of
downstream waters shall be attained and maintained.
(5) All exceptions to water quality
criteria shall be subject to review at least every three (3) years.
(6) Exceptions to water quality criteria
shall be adopted as an administrative regulation by listing them with the
respective surface water in 401 KAR 10:026.
Section 11. Exceptions to Criteria for
Individual Dischargers. (1) An exception to criteria may be granted to an
individual discharger based on a demonstration by the discharger, that KPDES
permit compliance with existing instream criteria cannot be attained because of
factors specified in 401 KAR 10:026, Section 2(4)(a) through (f).
(2) The demonstration shall include an
assessment of alternative pollution control strategies and biological
assessments that indicated designated uses are being met.
(3) Before granting an exception, the
cabinet shall ensure that the water quality standards of downstream waters
shall be attained and maintained.
(4) All exceptions shall be submitted to
the cabinet for review at least every three (3) years. Upon review, the
discharger shall demonstrate to the cabinet the effort the discharger made to
reduce the pollutants in the discharge to levels that would achieve existing applicable
water quality criteria.
(5) The highest level of effluent quality
that can be economically and technologically achieved shall be ensured while
the exception is in effect.
(6) The Kentucky Pollution Discharge
Elimination System permitting program shall be the mechanism for the review and
public notification of intentions to grant exceptions to criteria.
Section 12. Incorporation by Reference.
(1) The following material is incorporated by reference:
(a) "Water Quality Standards
Handbook-Chapter 3", EPA August 1994, Publication EPA-823-B-94-005a, U.S.
Environmental Protection Agency, Office of Water, Washington, D.C.; and
(b) "Interim Economic Guidance for
Water Quality Standards Workbook", EPA March 1995, Publication
EPA-823-B-95-002, U.S. Environmental Protection Agency, Office of Water,
Washington, D.C.
(2) This material may be inspected,
copied, or obtained, subject to applicable copyright law, at the Division of
Water, 200 Fair Oaks Lane, Frankfort, Kentucky, Monday through Friday, 8 a.m.
to 4:30 p.m.
(5 Ky.R. 829; Am. 6 Ky.R. 344; eff. 12-5-79; 11 Ky.R. 1144; 1384; eff. 4-9-85;
16 Ky.R. 838; 1370; 2666; eff. 5-31-90; 18 Ky.R. 1388; 2331; eff. 1-27-92; 26
Ky.R. 150; 824; 1148; eff. 12-8-99; 30 Ky.R. 1035; 1813; eff. 9-8-2004; TAm
eff. 8-9-2007, Recodified from 401 KAR 5:031; 2008; 35 Ky.R. 177; 930; 2723;
eff. 7-6-2009; 39 Ky.R. 596; 1188; 2167; eff. 5-31-2013.)