68971
Federal
Register
/
Vol.
67,
No.
220
/
Thursday,
November
14,
2002
/
Proposed
Rules
Dated:
November
4,
2002.
Patricia
L.
Toppings,
Alternate
OSD
Federal
Register
Liasion
Officer,
Department
of
Defense.

[
FR
Doc.
02
 
28735
Filed
11
 
13
 
02;
8:
45
am]

BILLING
CODE
5001
 
08
 
M
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
52
[
PA134
 
138
 
4193b;
FRL
 
7391
 
7]

Approval
and
Promulgation
of
Air
Quality
Implementation
Plans;
PA;
Revisions
to
Allegheny
County
Articles
XX
and
XXI
AGENCY:
Environmental
Protection
Agency
(
EPA).
ACTION:
Proposed
rule.

SUMMARY:
EPA
proposes
to
approve
the
State
Implementation
Plan
(
SIP)
revision
submitted
by
the
Commonwealth
of
Pennsylvania
on
behalf
of
Allegheny
County.
EPA
is
proposing
approval
of:
A
recodification
of
Allegheny
County's
air
pollution
control
regulations,
from
articles
XX
to
XXI;
revisions
of
Allegheny
County's
article
XXI
regulations
pertaining
to
general
administrative
provisions,
emissions
standards,
emergency
episode
plans,
test
methods,
and
the
permitting
provisions
for
new
and
modified
sources;
approval
of
new
and
revised
definitions
associated
with
the
article
XXI
provisions;
and
removal
from
the
SIP
of
outdated
and
outmoded
article
XX
provisions
which
are
no
longer
codified
in
article
XXI.
In
the
final
rules
section
of
this
Federal
Register,
EPA
is
approving
the
State's
SIP
submittal
as
a
direct
final
rule
without
prior
proposal
because
the
Agency
views
this
as
a
noncontroversial
submittal
and
anticipates
no
adverse
comments.
A
more
detailed
description
of
the
state
submittal
and
EPA's
evaluation
are
included
in
a
Technical
Support
Document
(
TSD)
prepared
in
support
of
this
rulemaking
action.
A
copy
of
the
TSD
is
available,
upon
request,
from
the
EPA
Regional
Office
listed
in
the
ADDRESSES
section
of
this
document.
If
no
adverse
comments
are
received
in
response
to
this
action,
no
further
activity
is
contemplated.
If
EPA
receives
adverse
comments,
the
direct
final
rule
will
be
withdrawn
and
all
public
comments
received
will
be
addressed
in
a
subsequent
final
rule
based
on
this
proposed
rule.
EPA
will
not
institute
a
second
comment
period.
Any
parties
interested
in
commenting
on
this
action
should
do
so
at
this
time.
Please
note
that
if
EPA
receives
adverse
comment
on
an
amendment,
paragraph,
or
section
of
this
rule
and
if
that
provision
may
be
severed
from
the
remainder
of
the
rule,
EPA
may
adopt
as
final
those
provisions
of
the
rule
that
are
not
the
subject
of
an
adverse
comment.

DATES:
Comments
must
be
received
in
writing
by
December
16,
2002.

ADDRESSES:
Written
comments
should
be
addressed
to,
Harold
A.
Frankford,
Office
of
Air
Programs,
Mailcode
3AP20,
U.
S.
Environmental
Protection
Agency,
Region
III,
1650
Arch
Street,
Philadelphia,
Pennsylvania
19103.
Copies
of
the
documents
relevant
to
this
action
are
available
for
public
inspection
during
normal
business
hours
at
the
Air
Protection
Division,
U.
S.
Environmental
Protection
Agency,
Region
III,
1650
Arch
Street,
Philadelphia,
Pennsylvania
19103;
Allegheny
County
Health
Department,
Bureau
of
Environmental
Quality,
Division
of
Air
Quality,
301
39th
Street,
Pittsburgh,
Pennsylvania
15201;
and
the
Pennsylvania
Department
of
Environmental
Protection,
Bureau
of
Air
Quality,
P.
O.
Box
8468,
400
Market
Street,
Harrisburg,
Pennsylvania
17105.

FOR
FURTHER
INFORMATION
CONTACT:
Harold
A.
Frankford,
(
215)
814
 
2108,
or
by
e­
mail
at
frankford.
harold@
epa.
gov.
Please
note
that
while
questions
may
be
posed
via
telephone
and
e­
mail,
formal
comments
must
be
submitted
in
writing,
as
indicated
in
the
ADDRESSES
section
of
this
document.

SUPPLEMENTARY
INFORMATION:
For
further
information,
please
see
the
information
provided
in
the
direct
final
action
for
Pennsyvania,
with
the
same
title,
that
is
located
in
the
``
Rules
and
Regulations''
section
of
this
Federal
Register
publication.
Please
note
that
if
EPA
receives
adverse
comment
on
an
amendment,
paragraph,
or
section
of
this
rule
and
if
that
provision
may
be
severed
from
the
remainder
of
the
rule,
EPA
may
adopt
as
final
those
provisions
of
the
rule
that
are
not
the
subject
of
an
adverse
comment.

Dated:
September
27,
2002.

Donald
S.
Welsh,

Regional
Administrator,
Region
III.
[
FR
Doc.
02
 
28697
Filed
11
 
13
 
02;
8:
45
am]

BILLING
CODE
6560
 
50
 
P
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.

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
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68972
Federal
Register
/
Vol.
67,
No.
220
/
Thursday,
November
14,
2002
/
Proposed
Rules
Coordinator,
Water
Management
Division,
EPA,
Region
4,
Sam
Nunn
Atlanta
Federal
Center,
61
Forsyth
Street,
SW.,
Atlanta,
Georgia
30303
 
3104,
404/
562
 
9267,
wagener.
fritz@
epa.
gov.

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:

Category
Examples
of
potentially
affected
entities
Industry
.............
Industries
discharging
pollutants
to
Kentucky
high
quality
waters
as
defined
in
§
131.39
of
this
proposed
rule.
Municipalities
....
Publicly­
owned
treatment
works
discharging
pollutants
to
Kentucky
high
quality
waters
as
defined
in
§
131.39
of
this
proposed
rule.

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.

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68973
Federal
Register
/
Vol.
67,
No.
220
/
Thursday,
November
14,
2002
/
Proposed
Rules
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
wagener.
fritz@
epa.
gov,
Attention
Docket
ID
No.
OW
 
2002
 
0022,
Water
Quality
Standards
for
Kentucky.
In
contrast
to
EPA's
electronic
public
docket,
EPA's
email
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
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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
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14,
2002
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Proposed
Rules
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.

Category
of
waters
Stream
miles
Water
bodies
%
of
total
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
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220
/
Thursday,
November
14,
2002
/
Proposed
Rules
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
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14,
2002
/
Proposed
Rules
``
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
costeffective
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
byparameter
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
byparameter
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.

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/
Proposed
Rules
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
byparameter
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
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Proposed
Rules
typically
terminated
for
that
proposed
activity.
The
significance
evaluation
is
usually
conducted
on
a
pollutant­
bypollutant
basis,
even
where
a
water
body­
bywater
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:
 
The
projected
magnitude
of
impact
on
the
receiving
stream
(
or
possible
effects
on
water
bodies
downstream
of
the
receiving
stream),
 
The
projected
reduction
in
the
assimilative
capacity
of
the
receiving
stream(
s),
and
potential
impacts
on
sediment
and
biota,
 
The
magnitude
of
the
increase
in
the
discharge
from
a
facility
over
existing
or
previously
permitted
discharges
(
or
existing
discharge
loadings),
 
The
temporary
nature
of
lowering
water
quality,
or
 
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
lesstoxic
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
costeffective
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
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/
Proposed
Rules
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
decisionmaking
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
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Vol.
67,
No.
220
/
Thursday,
November
14,
2002
/
Proposed
Rules
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,

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14,
2002
/
Proposed
Rules
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
forprofit
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
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14,
2002
/
Proposed
Rules
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
costeffective
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
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Federal
Register
/
Vol.
67,
No.
220
/
Thursday,
November
14,
2002
/
Proposed
Rules
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:

§
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
costeffective
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
 
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