401 KAR 5:026. Designation of uses of surface waters.

401 KAR 5:026. Designation of uses of surface waters.

RELATES TO: KRS 146.200-146.360, 146.410-146.535, 146.550-146.570, 146.600-146.619, 146.990, 224.01-010, 224.01-400, 224.16-050, 224.16-070, 224.70-100-224.70-140, 224.71-100-224.71-145, 224.73-100-224.73-120

STATUTORY AUTHORITY: KRS 146.220, 146.241, 146.270, 146.410, 146.450, 146.460, 146.465, 224.10-100, 224.16-050, 224.16-060, 224.70-100, 224.70-110, 40 C.F.R. Part 131, 16 U.S.C. 1271 et seq., 1531 et seq., 33 U.S.C. 1311, 1313, 1314, 1316, 1341

NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the Environmental and Public Protection Cabinet to develop and conduct a comprehensive program for the management of water resources and to provide for the prevention, abatement, and control of pollution. This administrative regulation and 401 KAR 5:002, 5:029, 5:030, and 5:031 establish procedures to protect the surface waters of the Commonwealth, and thus protect water resources. This administrative regulation applies the designated uses described in 401 KAR 5:031 to the surface waters of the Commonwealth. This administrative regulation also makes all surface waters subject to the general criteria specified in 401 KAR 5:031, Section 2. Definitions for terms used in this administrative regulation are found in 401 KAR 5:002.

Section 1. Scope of Designation. (1) Surface waters listed in this administrative regulation shall be designated for all legitimate uses contained in KRS 224.70-100(1) except as specified in 401 KAR 5:031, Sections 5 and 8, or until redesignated in accordance with the procedures of this administrative regulation.

(2) Designated uses are:

(a) Warm water aquatic habitat;

(b) Cold water aquatic habitat;

(d) Secondary contact recreation;

(e) Domestic water supply; and

(f) Outstanding state resource water.

(3) Listed waters shall meet all criteria applicable to their designated uses and those criteria listed in 401 KAR 5:031, Section 2, unless the cabinet grants an exception pursuant to 401 KAR 5:031, Section 10 or 11.

(4) Outstanding state resource waters may have unique water quality characteristics that shall be protected by additional criteria established in 401 KAR 5:031, Section 8.

Section 2. Redesignation of Surface Water Uses. (1) Surface waters may be redesignated only upon affirmative findings by the cabinet pursuant to Sections 3 and 4 of this administrative regulation. Before redesignating a surface water, the cabinet shall provide notice and an opportunity for a public hearing.

(2) In redesignating a surface water, the cabinet shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream surface waters.

(3) A designated use shall not be removed for a surface water if that use is an existing use, or if the use may be attained by implementing effluent limitations required under Sections 301(b) and 306 of the Clean Water Act, 33 U.S.C. 1311(b) and 1316, and by implementing cost-effective and reasonable best management practices for nonpoint source control.

(4) If a surface water is designated for a use that is not an existing use, the cabinet shall redesignate the surface water upon demonstration that the designated use is unattainable because:

(a) Naturally occurring pollutant concentrations prevent the attainment of the use;

(b) Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges;

(c) Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place;

(d) Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the surface water to its original condition or to operate such modification in a way that would result in the attainment of the use;

(e) Physical conditions related to the natural features of the surface water, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of the aquatic life use; or

(f) Controls more stringent than those required by Sections 301(b) and 306 of the Clean Water Act, 33 U.S.C. 1311(b) and 1316, would result in substantial and widespread economic and social impact as determined by the guidelines in "Interim Economic Guidance for Water Quality Standards Workbook", EPA, March 1995 incorporated by reference in Section 6 of this administrative regulation.

(5) Redesignations shall be consistent with the antidegradation provisions of 401 KAR 5:029 and 401 KAR 5:030.

Section 3. Documentation for Redesignations. (1) A person may request redesignation of surface water uses by petition to the cabinet. The petitioner shall provide the cabinet with the documentation required in subsection (3) of this section and shall have the burden of proof that the redesignation is appropriate.

(2) The cabinet may propose redesignations of surface water uses. The cabinet shall provide documentation for those surface waters that it proposes for use redesignation.

(3) Documentation to support the redesignation of a surface water of the Commonwealth shall be:

(a) A United States Geological Survey 7.5 minute topographic map or its equivalent approved by the cabinet showing those surface waters to be redesignated, with a description consisting of a river mile index with existing and proposed discharge points;

(b) Existing uses and water quality data for the surface waters for which the redesignation is proposed. If adequate data are unavailable, additional studies may be required by the cabinet;

(c) Descriptions of general land uses and specific land uses adjacent to the surface waters for which the redesignation is proposed;

(d) The existing and designated uses of the downstream waters into which the surface water under consideration discharges;

(e) General physical characteristics of the surface water including width, depth, bottom composition, and slope;

(f) The frequency of occasions when there is no natural flow in the surface water and the 7Q₁₀ and harmonic mean flow values for the surface water and adjacent surface waters;

(g) An assessment of the existing and potential aquatic life habitat in the surface waters under consideration and the adjacent upstream surface waters. The existing aquatic life shall be documented and livestock and natural wildlife dependence on the surface water shall be assessed. The occurrence of individuals or populations, indices of diversity and well-being, and abundance of species of any unique native biota shall be documented;

(h) The proposed designated uses for the surface water in question; and

(i) An explanation of the irretrievable person-induced, or natural conditions which preclude attainment of a higher use designation or an assessment of the substantial and widespread social and economic impacts resulting from the imposition of additional controls necessary for existing point sources, beyond the most stringent effluent limitation levels normally required for the sources.

Section 4. Procedures for Redesignation. (1) For each of the surface waters for which a redesignation is proposed, the cabinet or petitioner shall prepare a fact sheet containing the following information:

(a) The name and address of the petitioner;

(b) The name and sketch or description of the surface water proposed for specified use redesignations, including the location of existing and proposed dischargers;

(d) A brief abstract of the supportive documentation which demonstrates that the redesignation is appropriate;

(e) The appropriate water quality criteria for the surface water based on the proposed designated use;

(f) The treatment requirements proposed for discharges to the surface water in question if designated for the proposed use; and

(g) A "plain English" summary of the implications of the designation for the community and other users or potential users of the surface water in question.

(2) The cabinet shall document the determination to propose or deny redesignation as a result of a petition, and shall provide a copy of the decision to the petitioner and other interested parties.

Section 5. Surface Water Use Designations. (1) Listed in the tables below are the use designations for specific surface waters of the Commonwealth. The county column indicates the county in which the mouth or outlet of the surface water is located. The identifying symbols for use designations are:

WAH	Warm Water Aquatic Habitat
CAH	Cold Water Aquatic Habitat
PCR	Primary Contact Recreation
SCR	Secondary Contact Recreation
DWS	Domestic Water Supply, applicable at existing points of public water supply withdrawal
OSRW	Outstanding State Resource Water

(2) Surface waters not specifically listed in this section are designated for the use of warm water aquatic habitat, primary contact recreation, secondary contact recreation and domestic water supply in accordance with Section 1 of this administrative regulation.

(3) Exceptions to specific criteria in 401 KAR 5:031 that apply to particular surface waters are shown in the tables of surface water use designations in this section. All other criteria in 401 KAR 5:031 applicable to the listed use designations shall apply to these surface waters.

SURFACE WATER USE DESIGNATIONS
Water Body	Zone		County	Use Designation	Exceptions To Specific Criteria
BIG SANDY RIVER BASIN
Big Sandy River	River Mile 26.8 to Ohio River		Boyd	WAH, PCR, SCR
Hood Creek	Source to Wheeler Branch		Lawrence	WAH, PCR, SCR
Levisa Fork of Big Sandy River	Kentucky-Virginia State Line to River Mile 147.5 (Headwaters of Fishtrap Lake)		Pike	WAH, PCR, SCR, DWS
Levisa Fork of Big Sandy River	River Mile 126.6 (Fishtrap Lake Dam) to Big Sandy River		Lawrence	WAH, PCR, SCR, DWS
Paint Creek of Levisa Fork	River Mile 8.3 (Paintsville Lake Dam) to Levisa Fork		Johnson	CAH, PCR, SCR
Russell Fork of Big Sandy River	Kentucky-Virginia State Line (River Mile 15.9) to Levisa Fork		Pike	WAH, PCR, SCR, DWS
Tug Fork of Big Sandy River	Kentucky-Virginia State Line (River Mile 94.0) to Big Sandy River		Lawrence	WAH, PCR, SCR, DWS
LAKES AND RESERVOIRS
Dewey	Entire reservoir		Floyd	WAH, PCR, SCR, DWS
Fishtrap	Entire reservoir		Pike	WAH, PCR, SCR, DWS
Paintsville	Entire reservoir		Johnson	WAH, CAH, PCR, SCR
LITTLE SANDY RIVER BASIN
Big Caney Creek	Source to Grayson Lake		Elliott	CAH, PCR, SCR
Big Sinking Creek	River Mile 6.0 to Little Sandy River		Carter	WAH, PCR, SCR
Laurel Creek	Source to Little Sandy River		Elliott	CAH, PCR, SCR
Little Sandy River	Source to River Mile 71.1 (Headwaters of Grayson Lake)		Elliott	WAH, PCR, SCR, DWS
Little Sandy River	River Mile 50.0 (Grayson Lake Dam) to Ohio River		Greenup	WAH, PCR, SCR, DWS
LAKES AND RESERVOIRS
Grayson	Entire Reservoir		Carter	WAH, PCR, SCR
Greenbo	Entire Reservoir		Greenup	WAH, CAH, PCR, SCR, DWS
TYGARTS CREEK BASIN
Buffalo Creek	Source to Tygarts Creek		Carter	WAH, PCR, SCR
Little White Oak Creek	Source to Tygarts Creek		Greenup	WAH, PCR, SCR
Tygarts Creek	Source to Ohio River		Greenup	WAH, PCR, SCR, DWS
White Oak Creek	Source to Tygarts Creek		Greenup	WAH, PCR, SCR
LICKING RIVER BASIN
Burning Fork	Basin	Magoffin		WAH, PCR, SCR
Craney Creek	Source to North Fork of Licking River	Rowan/ Morgan		CAH, PCR, SCR
Fleming Creek	Source to Licking River	Nicholas		WAH, PCR, SCR
Licking River	Source to River Mile 218.2 (Headwaters of Cave Run Lake)	Morgan		WAH, PCR, SCR, DWS
Licking River	River Mile 176.8 (Cave Run Lake Dam) to River Mile 169.6 (U.S. Highway 60 Bridge)	Bath/Rowan		CAH, PCR, SCR, DWS
Licking River	River Mile 169.6 to River Mile 165.0	Bath/Rowan		WAH, PCR, SCR, DWS
Licking River	River Mile 165.0 to River Mile 154.5	Bath/Rowan		WAH, PCR, SCR, OSRW
Licking River	River Mile 154.5 to River Mile 115.0	Nicholas/ Bourbon		WAH, PCR, SCR, DWS
Licking River	River Mile 115.0 to River Mile 18.9	Kenton/ Campbell		WAH, PCR, SCR, DWS, OSRW
Licking River	River Mile 18.9 to Ohio River	Kenton/ Campbell		WAH, PCR, SCR, DWS
Minor Creek	River Mile 2.0 to Craney Creek	Morgan/Rowan		CAH, PCR, SCR
North Fork of Licking River	Source to Licking River	Pendleton/ Bracken		WAH, PCR, SCR, DWS
Slabcamp Creek	Basin including Stonecoal Branch	Rowan		CAH, PCR, SCR
Slate Creek	Source to Licking River	Bath		WAH, PCR, SCR, DWS
South Fork of Licking River	River Mile 65.1 to Licking River	Pendleton		WAH, PCR, SCR, DWS
LAKES AND RESERVOIRS
Cave Run	Entire Reservoir	Rowan/Bath		WAH, PCR, SCR
KENTUCKY RIVER BASIN
Bailey Run	Basin	Anderson		WAH, PCR, SCR
Buck Lick Branch	Basin	Lee		WAH, PCR, SCR
Cedar Brook	Basin	Anderson		WAH, PCR, SCR
Chimney Top Creek	Basin	Wolfe		CAH, PCR, SCR
Clarks Run	Source to Herrington Lake	Boyle		WAH, PCR, SCR
Dix River	Source to River Mile 33.1 (Headwaters of Herrington Lake)	Boyle/ Garrard		WAH, PCR, SCR
Dix River	Herrington Lake Dam to Kentucky River	Garrard/ Mercer		CAH, PCR, SCR
Dog Fork	Basin	Wolfe		CAH, PCR, SCR
East Fork of Indian Creek	Source to Indian Creek	Menifee		CAH, PCR, SCR
Gladie Creek	Basin	Menifee		CAH, PCR, SCR
Hanging Fork Creek	Source to Dix River	Boyle/Lincoln		WAH, PCR, SCR
Indian Creek	River Mile 5.2 to River Mile 1.2	Menifee		CAH, PCR, SCR
Kentucky River	River Mile 254.8 to Ohio River	Carroll		WAH, PCR, SCR, DWS
Middle Fork of Kentucky River	Source to River Mile 76.6 (Headwaters of Buckhorn Lake)	Leslie		WAH, PCR, SCR
Middle Fork of Kentucky River	River Mile 43.2 (Buckhorn Lake Dam) to North Fork of Kentucky River	Lee		WAH, PCR, SCR
Middle Fork of Red River	Source to River Mile 10.6	Powell		CAH, PCR, SCR
North Fork of Kentucky River	Source to Kentucky River	Lee		WAH, PCR, SCR, DWS
Parched Corn Creek	Source to Red River	Wolfe