The following are comments prepared By Hank Graddy on behalf of the Cumberland Chapter regarding proposed amendments to the Kentucky Administrative Regulations concerning water quality. These comments were presented to the Kentucky Division of Water at a public hearing on Thursday, October 23, 2003.
Re: Proposed amendments to:
401 KAR 5:002
401 KAR 5:026
401 KAR 5:029
These comments are submitted by the Sierra Club, Cumberland (KY) Chapter concerning the above referenced proposed amendments. The Sierra Club in Kentucky has commented previously on a number of occasions about the Kentucky administrative regulations applicable to water quality. We have been supportive of certain administrative proposals by the Natural Resources and Environmental Protection Cabinet (Cabinet), Division of Water (DOW). We supported the proposed regulations of Concentrated Animal Feeding Operations (CAFOs) that would make clear that Integrators – as the owners of the animals – must share permitting responsibilities with the farm owner.
However, we have been consistently disappointed with the decade long failure of this Cabinet to properly protect the water quality within the Commonwealth as required the Clean Water Act antidegradation requirement. This failure continues with these proposed amendments to 401 KAR 5:030.
Last January 23, 2003, we submitted comments to the U. S. EPA, Region IV expressing our agreement with the prior determinations by EPA that the Kentucky antidegradation implementation procedures should be disapproved as not protective of Kentucky’s waters. We also expressed great disappointment with the EPA proposed implementation rules for Kentucky because we could not locate any actual implementation rules for Kentucky within the EPA proposal. The practical result of the EPA proposal, as we read it, was to simply pitch the matter of implementing this Clean Water Act requirement back to the same Division of Water that had failed to get it right on two previous submittals.
The proposed 401 KAR 5:030 proves that our concerns were well founded.
We have reviewed the comments submitted by the Kentucky Waterways Alliance, Inc. (KWA) and the Environmental Law & Policy Center of the Midwest (ELPC) and we agree with those comments, except as clarified or modified herein.
We support the proposal to add a standard for E. coli to the fecal coliform standard to determine safe recreational use of our waters.
We support the prohibition of new mixing zones and the phase out of existing mixing zones for bio-accumulative toxins, although there is no reason to take 10 years to eliminate these mixing zones.
We note the KWA & EPLC support the addition of 166 waterways to the list of Exceptional Water. While this might deserve support if the “designational” or “waterbody-by-waterbody” approach was a workable method to implement the CWA antidegradation requirement, because we have determined that such approach is unworkable – both conceptually and pragmatically, we cannot join KWA & EPLC with support for this proposal.
We join emphatically with KWA & EPLC in urging the Cabinet to use the “parameter-by-parameter” (or “pollutant-by-pollutant”) approach. This is the only approach that will blend the CWA requirements to both restore water quality integrity where it is impaired - and – maintain water quality where it is not impaired. It is the only approach that will move Kentucky forward to accomplish the Clean Water Act goal to eliminate the discharge of pollutants into the nations waters.
SPECIFIC RESPONSES:
401 KAR 5:002
Page 14: (82) “Domestic water supply” is too narrow where this definition drives the designated use of drinking water as set out in 401 KAR 5:026.
Page 15: (95) We support adding the definition of E. coli.
Page 15: (98) We urge the DOW to delete the definition of “Exceptional Water” as it is used as part of the DOW “designational” approach.
Page 16: (103) We urge deletion of the definition “Expanded discharge” because the figure 20 % is arbitrary , and as used, would weaken antidegradation protection.
Page 18: (119) Urge deletion of definition of “High quality water” - See (98) above.
Page 52: (318) Support deletion of “Use protected water” - See (98) above.
Page 54: (334) The time is long past to eliminate every “Zone of initial dilution”
401 KAR 5:026
Pages 2 – 6: Limiting the Clean Water Act protection of water quality for the use of drinking water to protect only public water systems denies protection for many waters across Kentucky that deserve protection.
Pages 6 – 34: We support the changes we have reviewed which appear to include adding additional Coldwater Aquatic Habitat and Outstanding State Resource Water stream segments.
401 KAR 5:029
Pages1 – 2: The antidegradation policy is virtually unchanged. However, it contains language that has been completely ignored in the DOW efforts to write implementation requirements. The “Tier II” protection at page 2, Section (2) requires that good water quality “shall be maintained and protected unless the cabinet finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the cabinet’s continuing planning process, that allowing lower water quality is necessary…” [Emphasis added]
The Cabinet’s “continuing planning process” is governed by Clean Water Act section 303(e). This process is supposed to produce “Water quality management plans” as defined at 401 KAR 5:002 (325). Yet there is no evidence that the Cabinet has made any effort within the past 15 years to include “intergovernmental coordination” or any “public participation” in its continuing planning process. The most recent 303(e) plan provided to me as a result of my April 1, 2003 open records request was the Division of Water Management Plan 1996-1998. This document appears to have been prepared without public participation and without coordination with other governmental agencies.
A careful reading of Clean Water Act section 303(e) makes clear that this continuing planning process is, among other things, the vehicle for implementing total maximum daily load (TMDL – Clean Water Act section 303(d)) requirements. The fact that this planning process is built in to the antidegradation policy makes even more compelling that both the TMDL analysis and implementation and the antidegradation analysis and implementation are to be done on a pollutant by pollutant basis.
Pages 2-6: The mixing zone regulation should declare that all mixing zones will be phased out within ten (10 years – not just those that are a “bioaccumulative chemical of concern.” Mixing zones for BCCs should be phased out much earlier.
401 KAR 5:030
Page 1: We applaud the Cabinet citation of the policy of the Commonwealth concerning water – at KRS 224.70-100. Unfortunately, this regulation does not implement that statutory policy.
Pages 2-3: The three (3) “Outstanding National Resource Waters” greatly understates the water segments in Kentucky that deserve this highest level of Antidegradation protection. We recommend that all waters now designated “Outstanding State Resource Waters” be included within the “Tier III” protection that this regulation only provides to two surface waters and the waters within Mammoth Cave National Park.
Pages 3-20: We oppose the use of “Exceptional water” as a designation as part of antidegradation implementation for reasons provided to the DOW many times and by many commentators, including the KWA & EPLC.
Page 22: We oppose the “loopholes” for dischargers identified in “clauses a through e” – including: a. Storm water discharge; b. Coal mining discharge; c. Domestic sewage from a single family residence; d. CAFOs; and e. KPDES permit renewals with less than 20% increase from prior permitted loading.
These loopholes are clearly illegal.
Pages 22- 23: We oppose the “default” or “assigned” permit numbers that set forth in Subparagraphs 2 through 9 (Obviously, we are not opposed to any requirement that would prohibit Zones of initial dilution – we are opposed to this language because it is limited to “Exceptional waters). This approach is contrary to the antidegradation policy and contrary to EPA guidance.
Page 24: On this page, the DOW finally includes language that reveals that it understands what antidegradation is all about. Why doesn’t this page apply to every new or expanded discharge from a point source for every pollutant proposed to be permitted, where the ambient water quality in the receiving water is better than the applicable water quality standard?
Page 25: We oppose the new designation of “High quality water” because this does not help the DOW meet the Clean Water Act antidegradation requirements. We confess that we cannot figure out what the sentence at lines 10 through 13 means – but what we can understand of this proposed amendment we are opposed to for the same reasons given in the discussion of “Exceptional water” above.
Page 27: We are also opposed to the use of the term “Impaired water” as part of the DOW designational approach to antidegradation. The term “Impaired water” is already widely used and its use in this regulation does not help the DOW comply with the state responsibilities under the Clean Water Act.
401 KAR 5:031
Page 2: Kentucky needs numerical nutrient water quality standards.
Page 2: The narrative criteria (“Freedom froms”) need additional language to make clear what constitutes a violation of these narratives and to make clear that where these narrative criteria are being violated – the violations will trigger a regulatory response including enforcement actions adequate to eliminate the degradation.
Page 13: We support setting instream criteria for total residual chlorine.
Page 23: We support the combination of the pollutant tables into one table at Section 6.
Page 33: As noted above, we support adding E. coli numeric standards. However, they should be added to both Primary contact recreation waters and Secondary contact recreation waters.
Page 36 -40: Please provide in your response to comments a justification for having separate water quality criteria for the Main Stem of the Ohio River. Why are the criteria applicable to all other waters of the Commonwealth not equally applicable to the Ohio River ?
In conclusion, please withdraw these regulations and prepare regulations that recognize that in a given stream segment at any given moment – it may exhibit both excellent water quality for some pollutants and poor water quality for other pollutants – and that those excellent conditions require antidegradation protection at the same time the poor water quality conditions require regulatory and non- regulatory action to correct.
This is the only way we will be able to systematically improve water quality in Kentucky.
Thank you for this opportunity to comment.
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