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Kentucky Commences Triennial Review of State Water Quality Standards

On June 12, 2008, the Energy and Environment Cabinet Division of Water filed proposed amendments to Kentucky's water quality standards as part of its triennial review of the regulations.

Water quality standards establish the regulatory goals for in-stream water quality to be attained through limitations on individual discharges in the form of effluent limitations and other permit conditions. The Clean Water Act requires states to conduct a public review of their water quality standards at least once every three years. Kentucky's last triennial review was completed in September 2004 with final approval by EPA granted in December 2004 and April 2005. The changes approved by the last triennial review were the subject of a federal court lawsuit filed by environmental interest groups with respect to the antidegradation provisions. That lawsuit is still pending in the U.S. Court of Appeals for the Sixth Circuit.

As part of the current triennial review, the Division of Water proposes a new definition regulation, 401 KAR 10:002, and proposes moving Kentucky's existing water quality regulations from 401 KAR Chapter 5 to a new 401 KAR Chapter 10. The complete Division of Water June 12 filing can be found here and includes the following proposed changes of note:

  • Proposes to make clear that domestic water supply use designations only apply to the area in the immediate vicinity of drinking water surface water intakes, including language providing that domestic water supply criteria apply only at the listed intake location. The changes further propose to limit radionuclide criteria to water segments designated as drinking water supply use. 
  • Proposes to establish a modified warm water aquatic habitat standard with a less stringent dissolved oxygen standard. 
  • Proposes the addition of numerous waters to the OSRW and exceptional waters lists based upon the existence of federally threatened or endangered species or on other bases such as recent monitoring. Classification as an OSRW or exceptional water can restrict the authorization of new or expanded discharges to such waters. 
  • Proposes revisions at 401 KAR 10:029 Section 4 that delineate additional criteria for authorizing mixing zones. 
  • Proposes to substantially lower the warm water aquatic habitat numeric criteria for chlorides for the chronic standard (1200 mg/l to 860 mg/l) and for the acute standard (600 mg/l to 230 mg/l). 
  • Proposes the wholesale adoption of Ohio River Sanitation Commission (ORSANCO) Pollution Control Standards for discharges to the Ohio River (2006 Revision) at 401 KAR 10:031 Section 9. The proposal is not clear regarding whether such standards are intended to operate in lieu of Kentucky standards or to result in the application of the more stringent standards between the two programs. 
  • Proposes the addition of a methylmercury criterion applicable to fish tissue for the protection of human health as a result of the consumption of fish.

Of significance, the Division of Water has deferred promulgating numeric nutrient criteria until the next triennial review. Written public comments on the proposed revisions will be accepted through July 31, 2008. A public hearing regarding the proposed changes is scheduled for July 23, 2008. Please contact us if you need additional information about the proposal.

If you have any questions regarding this, or any other legal issue, please feel free to contact a member of Greenebaum's Environmental and Natural Resources Team.

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