401 KAR 10:031. Surface water standards.

 

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

STATUTORY AUTHORITY: KRS 146.220, 146.241, 146.270, 146.410, 146.450, 146.460, 146.465, 224.10-100, 224.16-050, 224.16-060, 224.70-100, 224.70-110, 40 C.F.R. Part 131, 16 U.S.C. 1271-1287, 1531-1544, 33 U.S.C. 1311, 1313, 1314, 1341

NECESSITY, FUNCTION, AND CONFORMITY: KRS 224.10-100 requires the cabinet to develop and conduct a comprehensive program for the management of water resources and to provide for the prevention, abatement, and control of water pollution. This administrative regulation and 401 KAR 10:001, 10:026, 10:029, and 10:030 establish procedures to protect the surface waters of the Commonwealth, and thus protect water resources. This administrative regulation establishes water quality standards that consist of designated legitimate uses of the surface waters of the Commonwealth and the associated water quality criteria necessary to protect those uses. These water quality standards are minimum requirements that apply to all surface waters in the Commonwealth of Kentucky in order to maintain and protect them for designated uses. These water quality standards are subject to periodic review and revision in accordance with the Clean Water Act, 33 U.S.C. 1251-1387, 40 C.F.R. 131, and KRS Chapter 224.

 

Section 1. Nutrients Criterion. Nutrients shall not be elevated in a surface water to a level that results in a eutrophication problem.

 

Section 2. Minimum Criteria Applicable to All Surface Waters. (1) The following minimum water quality criteria shall be applicable to all surface waters including mixing zones, with the exception that toxicity to aquatic life in mixing zones shall be subject to the provisions of 401 KAR 10:029, Section 4. Surface waters shall not be aesthetically or otherwise degraded by substances that:

(a) Settle to form objectionable deposits;

(b) Float as debris, scum, oil, or other matter to form a nuisance;

(c) Produce objectionable color, odor, taste, or turbidity;

(d) Injure, are chronically or acutely toxic to or produce adverse physiological or behavioral responses in humans, animals, fish, and other aquatic life;

(e) Produce undesirable aquatic life or result in the dominance of nuisance species;

(f)1. Cause fish flesh tainting.

2. The concentration of phenol shall not exceed 300 g/L as an instream value.

(2) The water quality criteria for the protection of human health related to fish consumption in Table 1 of Section 6 of this administrative regulation are applicable to all surface water at the edge of the assigned mixing zones except for those points where water is withdrawn for domestic water supply use.

(a) The criteria are established to protect human health from the consumption of fish tissue, and shall not be exceeded.

(b) For those substances associated with a cancer risk, an acceptable risk level of not more than one (1) additional cancer case in a population of 1,000,000 people, or 1 x 10-6 shall be utilized to establish the allowable concentration.

 

Section 3. Use Designations and Associated Criteria. (1) Surface waters may be designated as having one (1) or more legitimate uses and associated criteria protective of those uses. Those uses are listed in 401 KAR 10:026. Nothing in this administrative regulation shall be construed to prohibit or impair the legitimate beneficial uses of these waters. The criteria in Sections 2, 4, 6, and 7 of this administrative regulation represent minimum conditions necessary to:

(a) Protect surface waters for the indicated use; and

(b) Protect human health from fish consumption.

(2) On occasion, surface water quality may be outside of the limits established to protect designated uses because of natural conditions. If this occurs during periods when stream flows are below the flow that is used by the cabinet to establish effluent limitations for wastewater treatment facilities, a discharger shall not be considered a contributor to instream violations of water quality standards, if treatment results in compliance with permit requirements.

(3) Stream flows for water quality-based permits. The following stream flows shall be utilized if deriving KPDES permit limitations to protect surface waters for the listed uses and purposes:

(a) Aquatic life protection shall be 7Q10;

(b) Water-based recreation protection shall be 7Q10;

(c) Domestic water supply protection shall be determined at points of withdrawal as:

1. The harmonic mean for cancer-linked substances; and

2. 7Q10 for noncancer-linked substances;

(d) Human health protection from fish consumption and for changes in radionuclides shall be the harmonic mean; and

(e) Protection of aesthetics shall be 7Q10.

 

Section 4. Aquatic Life. (1) Warm water aquatic habitat. The following parameters and associated criteria shall apply for the protection of productive warm water aquatic communities, fowl, animal wildlife, arboreous growth, agricultural, and industrial uses:

(a) Natural alkalinity as CaCO3 shall not be reduced by more than twenty-five (25) percent.

1. If natural alkalinity is below twenty (20) mg/L CaCO3, there shall not be a reduction below the natural level.

2. Alkalinity shall not be reduced or increased to a degree that may adversely affect the aquatic community;

(b) pH shall not be less than six and zero-tenths (6.0) nor more than nine and zero-tenths (9.0) and shall not fluctuate more than one and zero-tenths (1.0) pH unit over a period of twenty-four (24) hours;

(c) Flow shall not be altered to a degree that will adversely affect the aquatic community;

(d) Temperature shall not exceed thirty-one and seven-tenths (31.7) degrees Celsius (eighty-nine (89) degrees Fahrenheit).

1. The normal daily and seasonal temperature fluctuations that existed before the addition of heat due to other than natural causes shall be maintained.

2. The cabinet may determine allowable surface water temperatures on a site-specific basis utilizing available data that shall be based on the effects of temperature on the aquatic biota that utilize specific surface waters of the commonwealth and that may be affected by person-induced temperature changes.

a. Effects on downstream uses shall also be considered in determining site-specific temperatures.

b. Values in the following table are guidelines for surface water temperature.

Month/Date

Period Average

Instantaneous Maximum

(F)

(C)

(F)

(C)

January 1-31

45

7

50

10

February 1-29

45

7

50

10

March 1-15

51

11

56

13

March 16-31

54

12

59

15

April 1-15

58

14

64

18

April 16-30

64

18

69

21

May 1-15

68

20

73

23

May 16-31

75

24

80

27

June 1-15

80

27

85

29

June 16-30

83

28

87

31

July 1-31

84

29

89

32

August 1-31

84

29

89

32

September 1-15

84

29

87

31

September 16-30

82

28

86

30

October 1-15

77

25

82

28

October 16-31

72

22

77

25

November 1-30

67

19

72

22

December 1-31

52

11

57

14

3. A successful demonstration concerning thermal discharge limits carried out pursuant to Section 316(a) of the Clean Water Act, 33 U.S.C. 1326, shall constitute compliance with the temperature requirements of this subsection. A successful demonstration assures the protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife in or on the water into which the discharge is made;

(e) Dissolved oxygen.

1. a. Dissolved oxygen shall be maintained at a minimum concentration of five and zero-tenths (5.0) mg/L as a twenty-four (24) hour average in water with WAH use;

b. The instantaneous minimum shall not be less than four and zero-tenths (4.0) mg/L in water with WAH use.

2. The dissolved oxygen concentration shall be measured at mid-depth in waters having a total depth of ten (10) feet or less and at representative depths in other waters;

(f) Total dissolved solids or specific conductance. Total dissolved solids or specific conductance shall not be changed to the extent that the indigenous aquatic community is adversely affected;

(g) Total suspended solids. Total suspended solids shall not be changed to the extent that the indigenous aquatic community is adversely affected;

(h) Settleable solids. The addition of settleable solids that may alter the stream bottom so as to adversely affect productive aquatic communities shall be prohibited;

(i) Ammonia. The concentration of the un-ionized form shall not be greater than 0.05 mg/L at any time instream after mixing. Un-ionized ammonia shall be determined from values for total ammonia-N, in mg/L, pH and temperature, by means of the following equation:

Y = 1.2 (Total ammonia-N)/(1 + 10pKa-pH)

pka = 0.0902 + (2730/(273.2 + Tc))

Where:

Tc = temperature, degrees Celsius.

Y = un-ionized ammonia (mg/L);

(j) Toxics.

1. The allowable instream concentration of toxic substances, or whole effluents containing toxic substances, which are noncumulative or nonpersistent with a half-life of less than ninety-six (96) hours, shall not exceed:

a. One-tenth (0.1) of the ninety-six (96) hour median lethal concentration (LC50) of representative indigenous or indicator aquatic organisms; or

b. A chronic toxicity unit of 1.00 utilizing the twenty-five (25) percent inhibition concentration, or LC25.

2. The allowable instream concentration of toxic substances, or whole effluents containing toxic substances, which are bioaccumulative or persistent, including pesticides, if not specified elsewhere in this section, shall not exceed:

a. 0.01 of the ninety-six (96) hour median lethal concentration (LC50) of representative indigenous or indicator aquatic organisms; or

b. A chronic toxicity unit of 1.00 utilizing the IC25.

3. In the absence of acute criteria for pollutants listed in Table 1 of Section 6 of this administrative regulation, for other substances known to be toxic but not listed in this administrative regulation, or for whole effluents that are acutely toxic, the allowable instream concentration shall not exceed the LC1 or one-third (1/3) LC50 concentration derived from toxicity tests on representative indigenous or indicator aquatic organisms or exceed three-tenths (0.3) acute toxicity units.

4. If specific application factors have been determined for a toxic substance or whole effluent such as an acute to chronic ratio or water effect ratio, they may be used instead of the one-tenth (0.1) and 0.01 factors listed in this subsection upon demonstration by the applicant that the application factors are scientifically defensible.

5. Allowable instream concentrations for specific pollutants for the protection of warm water aquatic habitat are listed in Table 1 of Section 6 of this administrative regulation. These concentrations are based on protecting aquatic life from acute and chronic toxicity and shall not be exceeded; and

(k) Total residual chlorine. Instream concentrations for total residual chlorine shall not exceed an acute criteria value of nineteen (19) g/L or a chronic criteria value of eleven (11) g/L.

(2) Cold water aquatic habitat. The following parameters and criteria are for the protection of productive cold water aquatic communities and streams that support trout populations, whether self-sustaining or reproducing, on a year-round basis. The criteria adopted for the protection of warm water aquatic life also apply to the protection of cold water habitats with the following additions:

(a) Dissolved oxygen.

1. A minimum concentration of six and zero-tenths (6.0) mg/L as a twenty-four (24) hour average and five and zero-tenths (5.0) mg/L as an instantaneous minimum shall be maintained.

2. In lakes and reservoirs that support trout, the concentration of dissolved oxygen in waters below the epilimnion shall be kept consistent with natural water quality; and

(b) Temperature. Water temperature shall not be increased through human activities above the natural seasonal temperatures.

 

Section 5. Domestic Water Supply Use. Maximum allowable in-stream concentrations for specific substances, to be applicable at the point of withdrawal, as established in 401 KAR 10:026, Section 5(2)(b), Table B, for use for domestic water supply from surface water sources are specified in Table 1 of Section 6 of this administrative regulation and shall not be exceeded.

 

Section 6. Pollutants. (1) Allowable instream concentrations of pollutants are listed in Table 1 of this section.


Table 1

Pollutant

CAS1 Number

Water Quality Criteria g/L2

Human Health:

Warm Water Aquatic Habitat3:

DWS4

Fish5

Acute6

Chronic7

Acenaphthene

83329

670

990

-

-

Acrolein

107028

190

6

3

3

Acrylonitrile

107131

0.051

0.25

-

-

Aldrin

309002

0.000049

0.000050

3.0

-

alpha-BHC

319846

0.0026

0.0049

-

-

alpha-Endosulfan

959988

62

89

0.22

0.056

Anthracene

120127

8,300

40,000

-

-

Antimony

7440360

5.6

640

-

-

Arsenic

7440382

10.0

-

340

150

Asbestos

1332214

7 million fibers/L

-

-

-

Barium

7440393

1,000

-

-

-

Benzene

71432

2.2

51

-

-

Benzidine

92875

0.000086

0.00020

-

-

Benzo(a)anthracene

56553

0.0038

0.018

-

-

Benzo(a)pyrene

50328

0.0038

0.018

-

-

Benzo(b)fluoranthene

205992

0.0038

0.018

-

-

Benzo(k)fluoranthene

207089

0.0038

0.018

-

-

Beryllium

7440417

4

-

-

-

Beta-BHC

319857

0.0091

0.017

-

-

Beta-Endosulfan

33213659

62

89

0.22

0.056

bis(chloromethyl)ether

542881

0.00010

0.00029

-

-

bis(2-chloroethyl)ether

111444

0.030

0.53

-

-

bis(2-chloroisopropyl)ether

108601

1,400

65,000

-

-

bis(2-ethylhexyl)phthalate

117817

1.2

2.2

-

-

Bromoform

75252

4.3

140

-

-

Butylbenzyl phthalate

85687

1,500

1,900

-

-

Cadmium

7440439

5

-

e(1.0166 (ln Hard*)-3.924)

e(0.7409 (ln Hard*)-

4.719)

Carbon tetrachloride

56235

0.23

1.6

-

-

Chlordane

57749

0.00080

0.00081

2.4

0.0043

Chloride

16887006

250,000

-

1,200,000

600,000

Chlorobenzene

108907

130

1600

-

-

Chlorodibromomethane

124481

0.40

13

-

-

Chloroform

67663

5.7

470

-

-

Chloropyrifos

2921882

-

-

0.083

0.041

Chromium

N/A

100

-

-

-

Chromium (III)

16065831

-

-

e(0.8190 (ln Hard*)+

3.7256)

e(0.8190 (ln Hard*)+

0.6848)

Chromium (VI)

18540299

-

-

16

11

Chrysene

218019

0.0038

0.018

-

-

Color

N/A

75 Platinum Cobalt Units

-

-

-

Copper

7440508

1,300

-

e(0.9422 (ln Hard*)-

1.700)

e(0.8545 (ln Hard*)-

1.702)

Cyanide, Free

57125

140

140

22

5.2

Demeton

8065483

-

-

-

0.1

Diazinon

333415

 

 

0.17

0.17

Dibenzo(a,h)anthracene

53703

0.0038

0.018

-

-

Dichlorobromomethane

75274

0.55

17

-

-

Dieldrin

60571

0.000052

0.000054

0.24

0.056

Diethyl phthalate

84662

17,000

44,000

-

-

Dimethyl phthalate

131113

270,000

1,100,000

-

-

Di-n-butyl phthalate

84742

2,000

4,500

-

-

Dinitrophenols

25550587

69

5300

-

-

Endosulfan sulfate

1031078

62

89

-

-

Endrin

72208

0.059

0.060

0.086

0.036

Endrin aldehyde

7421934

0.29

0.30

-

-

Ethylbenzene

100414

530

2100

-

-

Fluoranthene

206440

130

140

-

-

Fluorene

86737

1,100

5,300

-

-

Fluoride

N/A

4,000

-

-

-

Guthion

86500

-

-

-

0.01

Heptachlor

76448

0.000079

0.000079

0.52

0.0038

Heptachlor epoxide

1024573

0.000039

0.000039

0.52

0.0038

Hexachlorobenzene

118741

0.00028

0.00029

-

-

Hexachlorobutadiene

87683

0.44

18

-

-

Hexachlorocyclo-hexane-Technical

319868

0.0123

0.0414

-

-

Hexachlorocyclopentadiene

77474

40

1100

-

-

Hexachloroethane

67721

1.4

3.3

-

-

Ideno(1,2,3-cd)pyrene

193395

0.0038

0.018

-

-

Iron8

7439896

300

-

4,000

1,000

Isophorone

78591

35.0

960

-

-

Lead

7439921

15

-

e(1.273 (ln Hard*)-

1.460)

e(1.273 (ln Hard*)-

4.705)

Lindane (gamma-BHC)

58899

0.98

1.8

0.95

 

Malathion

121755

-

-

-

0.1

Mercury

7439976

2.0

0.051

1.4

0.77

Methylmercury

22967926

 

0.3 mg/Kg

 

 

Methoxychlor

72435

100

-

-

0.03

Methylbromide

74839

47

1,500

-

-

Methylene Chloride

75092

4.6

590

-

-

Mirex

2385855

-

-

-

0.001

Nickel

7440020

610

4,600

e(0.8460 (ln Hard*)+

2.255)

e(0.8460

(ln Hard*)+

0.0584)

Nitrate (as N)

14797558

10,000

-

-

-

Nitrobenzene

98953

17

690

-

-

Nitrosamines, Other

N/A

0.0008

1.24

-

-

N-Nitrosodibutylamine

924163

0.0063

0.22

-

-

N-Nitrosodiethylamine

55185

0.0008

1.24

-

-

N-Nitrosodimethylamine

62759

0.00069

3.0

-

-

N-Nitrosodi-n-Propylamine

621647

0.0050

0.51

-

-

N-Nitrosodiphenylamine

86306

3.3

6.0

-

-

N-Nitrosopyrrolidine

930552

0.016

34

-

-

Nonylphenol

1044051

 

 

28

6.6

Parathion

56382

-

-

0.065

0.013

Pentachlorobenzene

608935

1.4

1.5

-

-

Pentachlorophenol

87865

0.27

3.0

e(1.005

(pH)-4.869)

e(1.005

(pH)-5.134)

Phenol

108952

21,000

860,000

-

-

Polychlorinated Biphenyls (PCBs)

N/A

0.000064

0.000064

-

0.014

Pyrene

129000

830

4,000

-

-

Selenium

7782492

170

4,200

2589

8.610, 11

19.312

Silver

7440224

-

-

e(1.72 (ln Hard*)-6

.59)

-

Sulfate

N/A

250,000

-

-

-

Hydrogen Sulfide, Undissociated

7783064

-

-

-

2.0

Tetrachloroethylene

127184

0.69

3.3

-

-

Thallium

7440280

0.24

0.47

-

-

Toluene

108883

1300

15,000

-

-

Total Dissolved Solids

N/A

250,000

-

-

-

Toxaphene

8001352

0.00028

0.00028

0.73

0.0002

Tributyltin (TBT)

 

 

 

0.46

0.072

Trichloroethylene

79016

2.5

30

-

-

Vinyl Chloride

75014

0.025

2.4

-

-

Zinc

7440666

7,400

26,000

e(0.8473 (ln Hard*)+

0.884)

e(0.8473 (ln Hard*)+

0.884)

1,1-dichloroethylene

75354

330

7100

-

-

1,1,1-trichloroethane

71556

200

-

-

-

1,1,2-trichloroethane

79005

0.59

16

-

-

1,1,2,2-tetrachloroethane

79345

0.17

4.0

-

-

1,2-dichlorobenzene

95501

420

1300

-

-

1,2-dichloroethane

107062

0.38

37

-

-

1,2-dichloropropane

78875

0.50

15

-

-

1,2-diphenylhydrazine

122667

0.036

0.20

-

-

1,2-trans-dichloroethylene

156605

140

10,000

-

-

1,2,4-trichlorobenzene

120821

35

70

-

-

1,2,4,5-tetrachlorobenzene

95943

0.97

1.1

-

-

1,3-dichlorobenzene

541731

320

960

-

-

1,3-dichloropropene

542756

0.34

21

-

-

1,4-dichlorobenzene

106467

63

190

-

-

2-chloronaphthalene

91587

1,000

1,600

-

-

2-chlorophenol

95578

81

150

-

-

2-methyl-4,6-dinitrophenol

534521

13

280

-

-

2,3,7,8-TCDD (Dioxin)

1746016

5.0 E - 9

5.1 E - 9

-

-

2,4-D

94757

100

-

-

-

2,4-dichlorophenol

120832

77

290

-

-

2,4-dimethylphenol

105679

380

850

-

-

2,4-dinitrophenol

51285

69

5,300

-

-

2,4-dinitrotoluene

121142

0.11

3.4

-

-

2,4,5-TP (Silvex)

93721

10

-

-

-

2,4,5-trichlorophenol

95954

1,800

3,600

-

-

2,4,6-trichlorophenol

88062

1.4

2.4

-

-

3,3-dichlorobenzidine

91941

0.021

0.028

-

-

4,4-DDD

72548

0.00031

0.00031

-

-

4,4-DDE

72559

0.00022

0.00022

-

-

4,4-DDT

50293

0.00022

0.00022

1.1

0.001

1CAS = Chemical Abstracts Service.

2Water quality criteria in g/L unless reported in different units.

3Metal concentrations shall be total recoverable metals to be measured in an unfiltered sample, unless it can be demonstrated that a more appropriate analytical technique is available that provides a measurement of that portion of the metal present which causes toxicity to aquatic life.

4DWS = Domestic Water Supply Source.

5Fish = Fish Consumption.

6Acute criteria = protective of aquatic life based on one (1) hour exposure that does not exceed the criterion for a given pollutant.

7Chronic = protective of aquatic life based on ninety-six (96) hour exposure that does not exceed the criterion of a given pollutant more than once every three (3) years on the average.

8The chronic criterion for iron shall not exceed three and five tenths (3.5) mg/L (thirty-five hundred g/L) if aquatic life has not been shown to be adversely affected.

9If the concentration of sulfate is less than forty-four (44) mg/L, the alternate acute water quality standard for selenium may be obtained by calculating the Criterion Maximum Concentration (CMC) using the concentrations of selenite and selenate as follows:

CMC = 1/, where CMC1 is 258 g/L for selenite and CMC2 is e(0.5812 + 3.357)g/L for selenate, and f1 is the fraction of total selenium that is selenite and f2 is the fraction of total selenium that is selenate.

10This value is the concentration in g/g (dry weight) of whole fish tissue.

11 A concentration of five and zero tenths (5.0) g/L or greater selenium in the water column shall trigger further sampling and analysis of whole-body fish tissue or alternately of fish egg/ovary tissue.

12This value is the concentration in g/g (dry weight) of fish egg/ovary tissue.

*Hard = Hardness as mg/L CaCO3.

 


(2) The following additional criteria for radionuclides shall apply for Domestic Water Supply use:

(a) The gross total alpha particle activity, including radium-226 but excluding radon and uranium, shall not exceed fifteen (15) pCi/L;

(b) Combined radium-226 and radium-228 shall not exceed five (5) pCi/L. Specific determinations of radium-226 and radium-228 are not necessary if dissolved gross alpha particle activity does not exceed five (5) pCi/L;

(c) The concentration of total gross beta particle activity shall not exceed fifty (50) pCi/L;

(d) The concentration of tritium shall not exceed 20,000 pCi/l;

(e) The concentration of total Strontium-90 shall not exceed eight (8) pCi/L; or

(f) The concentration of uranium shall not exceed thirty (30) g/l.

 

Section 7. Recreational Waters. (1) Primary contact recreation water. The following criteria shall apply to waters designated as primary contact recreation use during the primary contact recreation season of May 1 through October 31:

(a) Fecal coliform content or Escherichia coli content shall not exceed 200 colonies per 100 ml or 130 colonies per 100 ml respectively as a geometric mean based on not less than five (5) samples taken during a thirty (30) day period. Content also shall not exceed 400 colonies per 100 ml in twenty (20) percent or more of all samples taken during a thirty (30) day period for fecal coliform or 240 colonies per 100 ml for Escherichia coli. Fecal coliform criteria listed in subsection (2)(a) of this section shall apply during the remainder of the year; and

(b) pH shall be between six and zero-tenths (6.0) to nine and zero-tenths (9.0) and shall not change more than one and zero-tenths (1.0) pH unit within this range over a period of twenty-four (24) hours.

(2) Secondary contact recreation water. The following criteria shall apply to waters designated for secondary contact recreation use during the entire year:

(a) Fecal coliform content shall not exceed 1,000 colonies per 100 ml as a thirty (30) day geometric mean based on not less than five (5) samples; nor exceed 2,000 colonies per 100 ml in twenty (20) percent or more of all samples taken during a thirty (30) day period; and

(b) pH shall be between six and zero-tenths (6.0) to nine and zero-tenths (9.0) and shall not change more than one and zero-tenths (1.0) pH unit within this range over a period of twenty-four (24) hours.

 

Section 8. Outstanding State Resource Waters. This designation category includes certain unique waters of the commonwealth. (1) Water for inclusion.

(a) Automatic inclusion. The following surface waters shall automatically be included in this category:

1. Waters designated pursuant to the Kentucky Wild Rivers Act, KRS 146.200-146.360;

2. Waters designated pursuant to the Federal Wild and Scenic Rivers Act, 16 U.S.C. 1271-1287;

3. Waters that support federally recognized endangered or threatened species pursuant to the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531-1544.

(b) Permissible consideration. Other surface waters shall be considered for inclusion in this category if:

1. The surface waters flow through or are bounded by state or federal forest land, or are of exceptional aesthetic or ecological value or are within the boundaries of national, state, or local government parks, or are a part of a unique geological, natural, or historical area recognized by state or federal designation; or

2. The surface water is a component part of an undisturbed or relatively undisturbed watershed that can provide basic scientific data and possess outstanding water quality characteristics, or fulfill two (2) of the following criteria:

a. Support a diverse or unique native aquatic flora or fauna;

b. Possess physical or chemical characteristics that provide an unusual and uncommon aquatic habitat; or

c. Provide a unique aquatic environment within a physiographic region.

(2) Outstanding state resource waters protection. The designation of certain waters as outstanding state resource waters shall fairly and fully reflect those aspects of the waters for which the designation is proposed. The cabinet shall determine water quality criteria for these waters as follows:

(a) At a minimum, the criteria of Section 2 and Table 1 of Section 6 of this administrative regulation and the appropriate criteria associated with the stream use designation assignments in 401 KAR 10:026, shall be applicable to these waters.

(b) Outstanding state resource waters that are listed as Exceptional Waters in 401 KAR 10:030, Section 1(2) shall have dissolved oxygen maintained at a minimum concentration of six and zero-tenths (6.0) mg/L as a twenty-four (24) hour average and an instantaneous minimum concentration of not less than five and zero-tenths (5.0) mg/L.

(c)1. If the values identified for an outstanding state resource water are dependent upon or related to instream water quality, the cabinet shall review existing water quality criteria and determine if additional criteria or more stringent criteria are necessary for protection, and evaluate the need for the development of additional data upon which to base the determination.

2. Existing water quality and habitat shall be maintained and protected in those waters designated as outstanding state resource waters that support federally threatened and endangered species of aquatic organisms, unless it can be demonstrated that lowering of water quality or a habitat modification will not have a harmful effect on the threatened or endangered species that the water supports.

(d) Adoption of more protective criteria in accordance with this section shall be listed with the respective stream segment in 401 KAR 10:026.

(3) Determination of designation.

(a) A person may present a proposal to designate certain waters pursuant to this section. Documentation requirements in support of an outstanding state resource water proposal shall contain those elements outlined in 401 KAR 10:026, Section 3(3)(a) through (h).

(b)1. The cabinet shall review the proposal and supporting documentation to determine if the proposed waters qualify as outstanding state resource waters within the criteria established by this administrative regulation.

2. The cabinet shall document the determination to deny or to propose redesignation, and a copy of the decision shall be served upon the petitioner and other interested parties.

(c) After considering all of the pertinent data, a redesignation, if appropriate, shall be made pursuant to 401 KAR 10:026.

 

Section 9. Water Quality Criteria for the Main Stem of the Ohio River. (1) The following criteria apply to the main stem of the Ohio River from its juncture with the Big Sandy River at River Mile 317.1 to its confluence with the Mississippi River, and shall not be exceeded.

(2) These waters shall be subject to all applicable provisions of 401 KAR 10:001, 10:026, 10:029, 10:030, and this administrative regulation, except for those criteria in paragraphs (a) and (b) of this subsection.

(a) Dissolved oxygen. Instream concentrations shall average at least five and zero-tenths (5.0) mg/L per calendar day and shall not be less than four and zero-tenths (4.0) mg/L except during the April 15 - June 15 spawning season when a minimum of five and one-tenth (5.1) mg/L shall be maintained.

(b) Maximum allowable instream concentrations for nitrite-nitrogen for the protection of human health shall be one and zero-tenths (1.0) mg/L and shall be met at the edge of the assigned mixing zone.

 

Section 10. Exceptions to Criteria for Specific Surface Waters. (1) The cabinet may grant exceptions to the criteria contained in Sections 2, 4, 6, 7, 8, and 9 of this administrative regulation for specific surface water upon demonstration by an applicant that maintenance of applicable water quality criteria is not attainable or scientifically valid but the use designation is still appropriate.

(2) The analysis shall show that the water quality criteria cannot be reasonably achieved, either on a seasonal or year-round basis due to natural conditions or site-specific factors differing from the conditions used to derive criteria in Sections 2, 4, 6, 7, 8, and 9 of this administrative regulation.

(a) Site-specific criteria shall be developed by the applicant utilizing toxicity tests, indicator organisms, and application factors that shall be consistent with those outlined in Chapter 3 of Water Quality Standards Handbook, EPA, 1994.

(b) In addition, an applicant shall supply the documentation listed in 401 KAR 10:026, Section 3.

(3) An exception to criteria listed in Table 1 of Section 6 of this administrative regulation for the protection of human health from the consumption of fish tissue may be granted if it is demonstrated that natural, ephemeral, intermittent, or low flow conditions or water levels preclude the year-round support of a fishery, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges.

(4) Before granting an exception to water quality criteria, the cabinet shall ensure that the water quality standards of downstream waters shall be attained and maintained.

(5) All exceptions to water quality criteria shall be subject to review at least every three (3) years.

(6) Exceptions to water quality criteria shall be adopted as an administrative regulation by listing them with the respective surface water in 401 KAR 10:026.

 

Section 11. Exceptions to Criteria for Individual Dischargers. (1) An exception to criteria may be granted to an individual discharger based on a demonstration by the discharger, that KPDES permit compliance with existing instream criteria cannot be attained because of factors specified in 401 KAR 10:026, Section 2(4)(a) through (f).

(2) The demonstration shall include an assessment of alternative pollution control strategies and biological assessments that indicated designated uses are being met.

(3) Before granting an exception, the cabinet shall ensure that the water quality standards of downstream waters shall be attained and maintained.

(4) All exceptions shall be submitted to the cabinet for review at least every three (3) years. Upon review, the discharger shall demonstrate to the cabinet the effort the discharger made to reduce the pollutants in the discharge to levels that would achieve existing applicable water quality criteria.

(5) The highest level of effluent quality that can be economically and technologically achieved shall be ensured while the exception is in effect.

(6) The Kentucky Pollution Discharge Elimination System permitting program shall be the mechanism for the review and public notification of intentions to grant exceptions to criteria.

 

Section 12. Incorporation by Reference. (1) The following material is incorporated by reference:

(a) "Water Quality Standards Handbook-Chapter 3", EPA August 1994, Publication EPA-823-B-94-005a, U.S. Environmental Protection Agency, Office of Water, Washington, D.C.; and

(b) "Interim Economic Guidance for Water Quality Standards Workbook", EPA March 1995, Publication EPA-823-B-95-002, U.S. Environmental Protection Agency, Office of Water, Washington, D.C.

(2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Water, 200 Fair Oaks Lane, Frankfort, Kentucky, Monday through Friday, 8 a.m. to 4:30 p.m. (5 Ky.R. 829; Am. 6 Ky.R. 344; eff. 12-5-79; 11 Ky.R. 1144; 1384; eff. 4-9-85; 16 Ky.R. 838; 1370; 2666; eff. 5-31-90; 18 Ky.R. 1388; 2331; eff. 1-27-92; 26 Ky.R. 150; 824; 1148; eff. 12-8-99; 30 Ky.R. 1035; 1813; eff. 9-8-2004; TAm eff. 8-9-2007, Recodified from 401 KAR 5:031; 2008; 35 Ky.R. 177; 930; 2723; eff. 7-6-2009; 39 Ky.R. 596; 1188; 2167; eff. 5-31-2013.)