STATEMENT OF EMERGENCY

ENVIRONMENTAL AND PUBLIC PROTECTION CABINET

Department for Environmental Protection

Division of Water

(New Administrative Regulation)

401 KAR 9:010. Section 401 Individual Water Quality Certification public notice.

RELATES TO: KRS 224.01-010, 224.10-100, 224.16-050, 224.16-070, 350.060

STATUTORY AUTHORITY: KRS 224.16-050, 33 U.S.C. 1341

NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.16-050 authorizes the cabinet to certify pursuant to 33 U.S.C. 1341 that applicants for a federal permit regarding the construction or operation of facilities, which may result in a discharge of dredged or fill material into the waters of the Commonwealth, as defined in KRS 224.01-010(33), shall comply with the applicable provisions of the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq. This administrative regulation establishes the procedures for public notice of Section 401, Individual Water Quality Certifications.

Section 1. Public Notice. (1) The cabinet shall give public notice of receipt of an administratively complete application for a Section 401 Individual Water Quality Certification.

(a) An administratively complete application shall contain the information necessary to allow a meaningful review of the project based on its merits.

1. An applicant for a project relating to surface mining coal operations shall submit the Application for Water Quality Certification for Surface Coal Mining Activities.

2. All other applicants seeking certification shall submit the Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification.

(b) If an application is incomplete, a notice shall be sent to the applicant indicating the areas of the application that are deficient.

(2) Section 401 Individual Water Quality Certification public notices may describe more than one (1) certification or action and may be a part of other public notices under the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq.

Section 2. Methods. (1) The cabinet shall post public notices on its Web site; and

(2) The cabinet shall give public notice by one (1) of the following methods:

(a) By electronically mailing a copy of the notice to the following persons:

1. The applicant; and

2. All persons who have requested copies of Section 401 Individual Water Quality Certification public notices; or

(b) By mailing a copy of the notice to anyone listed in subsection (2)(a)2 of this section who has requested to be notified by standard mail.

Section 3. Content. A public notice shall contain at least the following information:

(1) The name and address of the applicant and, if different, the address or location of the activity regulated by the certification;

(2) The name, address, and telephone number of the applicant or applicant’s representative to contact for further information;

(3) A brief description of the comment procedures, including deadlines;

(4) A brief description of the proposed activity and its purpose;

(5) The location of the waters of the Commonwealth affected by the proposed activity; and

(6) The location and availability of the application for public inspection.

Section 4. Public Comment. (1) The public comment period shall expire thirty (30) days from the date of the public notice.

Section 5. Incorporation by reference. (1) The following material is incorporated by reference:

(a) "Application for Water Quality Certification for Surface Coal Mining Activities", Form DNR-WQC, February 2008.

(b) "Application for Permit to Construct Across or Along a Stream and/or Water Quality Certification", January 2004.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Water, 14 Reilly Road , Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

ROBERT D. VANCE, Secretary

APPROVED BY AGENCY: February 29, 2008

FILED WITH LRC: March 3, 2008 at 3 p.m.

PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on April 22, 2008 at 10 a.m. (Eastern Time) at the Conference Room D-16 of the Department for Natural Resources at #2 Hudson Hollow, Frankfort, Kentucky. Individuals interested in being heard at this hearing shall notify this agency in writing by April 15, 2008, five workdays prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be canceled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until April 30, 2008. Send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person.

CONTACT PERSON: Abigail Powell, Regulations Coordinator, Division of Water, 14 Reilly Road, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m.

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

Contact Person: Sandy Gruzesky

(1) Provide a brief summary of:

(a) What this administrative regulation does: This administrative regulation establishes procedures for Section 401 Individual Water Quality Certification public notice.

(b) The necessity of this administrative regulation: 33 U.S.C. sec. 1341 requires that states establish procedures for 401 certification public notice.

(c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 224.16-050 authorizes the cabinet to certify pursuant to 33 U.S.C. sec. 1341 that applicants for a federal permit for the construction or operation of facilities which may result in a discharge into the waters of the Commonwealth will comply with the applicable provisions of the Federal Water Pollution Control Act. This administrative regulation establishes the procedures for public notice of Section 401 Individual Water Quality certifications.

(d) How this administrative regulation currently assists or will assist in the effective administration of the statutes:

There is currently no regulation governing 401 certification public notice. This will establish procedures for public notice.

(2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

(a) How the amendment will change this existing administrative regulation: Not applicable.

(b) The necessity of the amendment to this administrative regulation: Not applicable.

(d) How the amendment will assist in the effective administration of the statutes: Not applicable.

(3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: The Cabinet processed approximately 228 individual certifications during the year 2007. This included work proposed by federal government six (6), state government forty-five (45), city/county governments fifteen (15), industrial, commercial, and residential developers ninety (90), coal industry (53), urban and rural residents fifteen (15), and others five (5).

(4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

(a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Public notice provisions will be implemented by the cabinet. No additional actions are necessary on the part of the applicant.

(b) In complying with this administrative regulation or amendment, how much will it cost each of the entities identified in question (3):There will be no additional costs to the entity associated with this administrative regulation.

(c) As a result of compliance, what benefits will accrue to the entities identified in question (3): Potentially impacted individuals, businesses, organizations, and governments will be notified of an applicant’s request for 401 certification.

(5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

(a) Initially: The costs associated with this administrative regulation will be minimal and absorbed by the agency.

(b) On a continuing basis: The costs associated with this administrative regulation will be minimal and absorbed by the agency.

(6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation? The costs associated with this administrative regulation will be minimal. Existing funding is a combination of state general fund dollars and federal Clean Water Act Water Pollution Control grant funds.

(7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new, or by the change if it is an amendment: There will not be an increase in fees associated with this administrative regulation.

(8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees: This administrative regulation does not establish fees.

(9) TIERING: Is tiering applied? No. Public notice is required for each applicant for an individual 401 water quality certification.

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

1. Does this administrative regulation relate to any program, service, or requirements of a state or local government (including cities, counties, fire departments, or school districts)? Yes

2. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? Each applicant will be required to provide public notice of their application for 401 certification.

3. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. 33 U.S.C. 1341 requires that states establish procedures for 401 certification public notice. KRS 224.16-050 and 224.16-070 authorize the cabinet to certify pursuant to 33 U.S.C. 1341 that applicants for a federal permit for the construction or operation of facilities which may result in a discharge into the waters of the Commonwealth will comply with the applicable provisions of the Federal Water Pollution Control Act. This administrative regulation establishes the procedures for public notice of Section 401 Individual Water Quality certifications.

4. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year the administrative regulation is to be in effect.

(a) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? Revenue will not be generated from the implementation of this administrative regulation.

(b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? Not applicable.

(c) How much will it cost to administer this program for the first year? The costs associated with this administrative regulation will be minimal and absorbed by the agency.

(d) How much will it cost to administer this program for subsequent years? The costs associated with this administrative regulation will be minimal and absorbed by the agency.

Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

Revenues (+/-):

Expenditures (+/-):

Other Explanation:

FEDERAL MANDATE ANALYSIS COMPARISON

1. Federal statute or regulation constituting the federal mandate.

33 U.S.C. 1341 requires that states establish procedures for 401 certification public notice.

2. State compliance standards. KRS 224.16-050 and 224.16-070 authorize the cabinet to certify pursuant to 33 U.S.C. 1341 that applicants for a federal permit for the construction or operation of facilities which may result in a discharge into the waters of the Commonwealth will comply with the applicable provisions of the Federal Water Pollution Control Act.

3. Minimum or uniform standards contained in the federal mandate. 33 U.S.C. 1341 requires states establish procedures for public notice in the case of all applications for certification. No specific standards are provided in the federal mandate.

4. Will this administrative regulation impose stricter requirements, or additional or different responsibilities or requirements than those required by the federal mandate? No

5. Justification for the imposition of the stricter standard, or additional or different responsibilities or requirements. Not applicable