4US Army Corps of Engineers Jurisdictional Waterbody, Waters of the US, Navigable Water, Waters of the Commonwealth (ephemeral, intermittent, perennial, wetlands)US Army Corps of Engineers
5401 KAR10:001, Section 1(80) "Surface waters" means those waters having well-defined banks and beds, either constantly or intermittently flowing; lakes and impounded waters; marshes and wetlands; and any subterranean waters flowing in well-defined channels and having a demonstrable hydrologic connection with the surface. Lagoons used for waste treatment and effluent ditches that are situated on property owned, leased, or under valid easement by a permitted discharger are not considered to be surface waters of the commonwealth.
6Kentucky Water Quality Standards (Criteria) Regulations 401 KAR 10:001 – Definitions401 KAR 10:026 – Designated uses of surface waters401 KAR 10:029 – Antidegradation Policy and general provisions (mixing zones, variance, etc)401 KAR 10:030 – Antidegradation procedures401 KAR 10:031 – Surface water standardsMission StatementThe Kentucky Watershed Framework will serve as a means for coordinating and integrating the programs, tools, and resources of stakeholders to better protect, maintain, and restore the ecological composition, structure, and function of watersheds and to support the sustainable uses of watersheds for the people of the Commonwealth.GoalsThe Kentucky Watershed Management Framework is designed to facilitate an approach that focuses on meeting individual program goals to one that can achieve watershed- based goals. The Framework design reflects the following watershed resource management goals:• Protect and enhance public health and safety.• Conserve and enhance watershed ecosystems.• Support sustainable watershed resource use that meets water quality standards and conservation goals.• Reduce or prevent pollutant loadings and other stressors in watersheds.• Preserve and enhance esthetic and recreational values of watersheds.• Provide adequate water supply to support sustainable human use and ecological integrity.
7Antidegradation: Protect existing uses, high quality, OSRWs, ONRWs Clean Water ActDesignated Use: State’s management goals for a waterbody 401KAR10:026Criteria (water quality standards): Exist to protect Designated Uses 401KAR10:031Permit Limts: Derived from and comply with WQSMany potential Dus. WQS can be numeric or narrative.Antidegradation: Protect existing uses, high quality, OSRWs, ONRWs
8Designated Uses 401KAR10:026 Aquatic Life (WAH, CAH) Primary Contact RecreationSecondary Contact RecreationDomestic Water SupplyOSRWFish Consumption (implied in 10:031)All waters not stipulated with designated uses in 401KAR10:026 default to High Quality waters (PCR, SCR, WAH, DWS)
9Triennial Review Process CWA, Sec 303(c), 40CFR130.5(b)(6) requires periodic examination and update of state’s water quality standardsStakeholder process crucialPublic Hearing requiredLegislature must approve any changes to standardsEPA must approve any changes to standardsLast KY Triennial Review: 2008
10KY Triennial Review 2012 Triennial Review of WQS 14 Exceptional Waters (10:030)26 OSRWs Designated Uses(10:026)401 KAR10:031New criterion: acrolein (building block for industrial chemical products) and phenol (building block for petroleum products)Sec. 1(nutrients narrative in combination with 401KAR10:001- Definition of eutrophication)Sec 9 (Ohio River-D.O.)Selenium (Se):Acute Criterion withdrawn State Specific Criteria
11Se A necessary element for most organisms A component of multi-vitaminsNaturally occurring in KY geology, but found in higher concentrations in parts of eastern KY and West Virginia coal fieldsTransported via water run-off of exposed geology (coal fields, transportation projects, major construction sites)
13Purpose of Se CriteriaProvides assurance that aquatic life and habitat is protected with regard to potential acute and chronic toxicity effectsProtect the Designated Use of a waterbody
14Existing Se Criteria 20 micrograms/liter acute; 5 micrograms/liter chronicCurrent criteria based on an equation that accounts for percent fraction of selenate and selenite in the water columnCriteria adopted in 1990 from EPA National Recommended Water Quality CriteriaCriteria developed from a single study (Belews Lake, NC)US Court of Appeals vacated (1996) national acute criteria for lack of sound science and technical merit. ORSANCO as well as several states have or are in the course of vacating
15Why change Se criteria?20 years of scientific studies have demonstrated differential acute water quality toxicity levels for selenate and selenite (chemical species of Se)This science has demonstrated that chronic water quality concerns are more appropriately expressed as fish tissue criteriaDifferences in toxicity between selenate and seleniteToxicity to aquatic life is a result of dietary uptake (not water column)Sulfate modifies potential acute toxicity effects of slenate
16Complex and confounding relationships between varying hydrologic conditions Differential toxicity of selenium species
17In September, 2012, KY initially proposed to delete the acute criteria all together. Response to comments during the Triennial Review prompted the Cabinet to revise the acute criteria
18Proposed Se CriteriaAcute: 258 μg/l (current EPA recommended criterion), with sulfate modifier equation for selenateChronic: 5 μg/l. If wastewater discharge levels exceed 5 μg/l, whole body fish tissue (8.6 μg /g) or egg/ovary tissue (19.3 μg /g) analysis will be required.These criteria are designed to protect stream designated uses and instream aquatic life before a problem occurs.
19Proposed Se CriteriaOnly the second KY state specific criteria developed (Chloride in the 80’s)The Cabinet utilized 20 yrs and 80 studies of scientific researchThe cabinet coordinated and conferred with EPA (headquarters and Region IV)The cabinet coordinated and conferred with US Fish and WildlifeThe cabinet coordinated and conferred with multiple resources in the scientific community
20For a fascinating late night read, you can download or request: Update to Kentucky Water Quality Standards for Protectionof Aquatic Life: Acute Selenium Criterion andTissue-Based Selenium Chronic CriteriaRandall G. Payne, Environmental ScientistKY Division of WaterDepartment for Environmental ProtectionKentucky Cabinet for Energy and Environment
22What if there are no fish? We have a problemThe default 5 μg/l becomes the compliance criteria.
23Why were fish like fathead minnow, bluegill, and catfish used in scientific studies as opposed to dace, darters, and shiners?Very similar to the methods employed for human toxicology studies, surrogates such as white rats and monkeys are used in place of humans. These fish species are surrogates and representative of the species that exist in these streams.
24What about multiple dischargers in the same watershed? Potential dischargers to OSRWs, Exceptional Waters, and Impaired waters are required to have an individual KPDES permit. Entities with individual KPDES permits are now required to perform in-stream pre-monitoring of at least one year to determine baseline conditions.
25Did the Cabinet adhere to appropriate administrative process? The Cabinet adhered to Kentucky Revised Statute 13A requirementsThe Cabinet adhered to federal 40 CFR Part 25.10(b) procedural requirementsThe Cabinet provided public notice and opportunity for input through multiple venues
26What Happens Next?KY Legislature has accepted the changes to regulationThe proposed regulation package has been sent to EPA for a 60 to 90 day review period.EPA will make a final determination
28K-DOW!!! Additional News Floyds Fork Bacteria TMDL PN this summer Floyds Fork Nutrient TMDL: model and destiny in KY’s handsWaste Water Lab Certification Program is getting underway this summerUpdate on One-Step Removal Process coming this summerIntegrated Report (303d List) will be out this summerKDOW will be upgrading its website especially in relation to Integrated Reporting, TMDL development, public involvementGeneral Industrial SW Permit this summer
29How can EQC assist KDOW? Riparian Buffers and Wetlands Promotion Are the best tools to address NPS runoffProvide improvements to water quality via temperature control, habitat (aquatic and terrestrial), stream bank stabilization, pollutant filtrationAssist with climate change mitigationAir pollutant uptakeNoise ControlDust ControlStormwater managementFlood control
30Clark Dorman, ManagerWater Quality BranchKY Division of WaterPh