[Federal Register Volume 67, Number 220 (Thursday, November 14, 2002)]
[Proposed Rules]
[Pages 68971-68984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28922]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA Docket ID No. OW-2002-0022; FRL-7408-3]


Water Quality Standards for Kentucky

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comments.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing water quality standards that establish an 
antidegradation policy and implementation methods for high quality 
waters in the Commonwealth of Kentucky. On August 7, 1997, EPA 
disapproved the Commonwealth's antidegradation provisions for ``high 
quality waters'' because the criteria for designating such waters were 
not sufficiently inclusive. The Commonwealth subsequently revised 
portions of the antidegradation provisions. However, the replacement 
standards did not address all of the disapproved items. The Clean Water 
Act requires the Administrator to propose and promulgate revised water 
quality standards if she determines that a standard adopted by a State 
is inconsistent with the Act.

DATES: EPA will consider written comments on the proposal received by 
March 14, 2003.
    EPA will hold a public hearing on this proposed rule on January 23, 
2003, from 2 pm to 5 pm and from 7 pm to 10 pm. If you need special 
accommodations at this meeting, including wheelchair access or sign 
language interpreter, you should contact Fritz Wagener at 404/562-9267 
at least 15 business days prior to the meeting so that we can make 
appropriate arrangements.

ADDRESSES: Send your comments by mail to: Docket Manager, Attention 
Docket ID No. OW-2002-0022, Water Quality Standards for Kentucky, EPA, 
Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-3104. You may also submit comments 
electronically, or through hand delivery or courier. Follow the 
detailed instructions provided in I.C. The hearing will be conducted at 
the Capital Plaza Convention Complex, 405 Mero Street, Frankfort, 
Kentucky.
    Comments may be submitted electronically, by mail, or through hand 
delivery or courier. Follow the detailed instructions provided in 
SUPPLEMENTARY INFORMATION Part I. General Information.

FOR FURTHER INFORMATION CONTACT: Fritz Wagener, Water Quality Standards

[[Page 68972]]

Coordinator, Water Management Division, EPA, Region 4, Sam Nunn Atlanta 
Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303-3104, 
404/562-9267, [email protected].

SUPPLEMENTARY INFORMATION: This section is organized as follows:

I. General Information
    A. What Entities May Be Affected by this Action?
    B. How Can I Get Copies of this Document and Related 
Information?
    C. How and to Whom Do I Submit Comments?
    D. What Should I Consider as I Prepare My Comments for EPA?
II. Background
    A. What Are the Applicable Federal Statutory and Regulatory 
Requirements?
    B. What Are Kentucky's Antidegradation Provisions?
    C. Why Is EPA Proposing Federal Antidegradation Provisions for 
the Commonwealth of Kentucky?
III. Today's Proposed Rule
    A. What Is the Proposed Policy to Protect Kentucky's High 
Quality Waters?
    B. How Will Kentucky Identify a High Quality Water?
    C. How Will Kentucky Implement the Proposed High Quality Waters 
Policy?
    D. What Are the Cost Implications of the Proposed Rule?
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866 (Regulatory Planning and Review)
    B. Executive Order 13045 (Protection of Children from 
Environmental Health Risks and Safety Risks)
    C. Executive Order 13132 (Federalism)
    D. Executive Order 13175 (Consultation and Coordination with 
Indian Tribal Governments)
    E. Executive Order 13211 (Actions that Significantly Affect 
Energy Supply, Distribution or Use)
    F. Paperwork Reduction Act
    G. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996
    H. Unfunded Mandates Reform Act
    I. National Technology Transfer and Advancement Act of 1995
    J. Endangered Species Act
    K. Plain Language

I. General Information

A. What Entities May Be Affected by This Action?

    Citizens concerned with water quality in Kentucky may be interested 
in this proposed rulemaking. Today's proposal, if made final, will 
establish an antidegradation policy for high quality waters in the 
Commonwealth of Kentucky (hereafter, ``the Commonwealth'' or 
``Kentucky'') and methods for implementing the policy. High quality 
waters are waters where the quality of the water is better than the 
levels necessary to support propagation of fish, shellfish, and 
wildlife and recreation in and on the water. Waters that currently are 
regulated by Kentucky under the Commonwealth's exceptional waters and 
outstanding national resource waters provisions of its regulations 
would not be subject to this rule because they are already protected 
under Kentucky's antidegradation program.
    Entities potentially indirectly affected by this action are 
National Pollutant Discharge Elimination System (NPDES) permit 
applicants in Kentucky. Kentucky is authorized to issue these permits 
and does so through the Kentucky Pollutant Discharge Elimination System 
(KPDES) program, CWA section 404 dredge and fill permits, and other 
activities requiring a CWA 401 certification. The KPDES permit 
applicants (e.g., industries or municipalities) which request 
authorization from the Commonwealth of Kentucky for a new or an 
increased discharge to high quality waters in Kentucky are the entities 
potentially indirectly affected by this action. Categories and entities 
that may be indirectly affected include:

------------------------------------------------------------------------
                                        Examples of potentially affected
               Category                             entities
------------------------------------------------------------------------
Industry..............................  Industries discharging
                                         pollutants to Kentucky high
                                         quality waters as defined in
                                         Sec.   131.39 of this proposed
                                         rule.
Municipalities........................  Publicly-owned treatment works
                                         discharging pollutants to
                                         Kentucky high quality waters as
                                         defined in Sec.   131.39 of
                                         this proposed rule.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding KPDES regulated entities likely to be 
affected by this action. This table lists the types of entities that 
EPA is now aware could potentially be affected by this action. Other 
types of entities not listed in the table could also be affected. To 
determine whether your facility may be affected by this action, you 
should carefully examine today's proposed rule. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

B. How Can I Get Copies of This Document and Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2002-0022. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing 
under Water Quality Standards for Kentucky at Water Management 
Division, EPA, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-3104. This Docket Facility is open 
from 9 am to 3:30 pm, Monday through Friday, excluding legal holidays. 
The Docket telephone number is 404-562-9267. A reasonable fee will be 
charged for copies.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in OW-2002-0022, the docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in I.B.1. EPA intends to work towards 
providing electronic access to all of the publicly available docket 
materials through EPA's electronic public docket.

[[Page 68973]]

    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or on paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket identified 
in I.B.1.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket, 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

C. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery or courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments. The Agency will make every 
attempt to consider them, however.
    1. Electronically. If you submit an electronic comment as 
prescribed in this section, EPA recommends that you include your name, 
mailing address, and an e-mail address or other contact information in 
the body of your comment. Also include this contact information on the 
outside of any disk or CD ROM you submit, and in any cover letter 
accompanying the disk or CD ROM. This ensures that you can be 
identified as the submitter of the comment and allows EPA to contact 
you in case EPA cannot read your comment due to technical difficulties 
or needs further information on the substance of your comment. EPA's 
policy is that EPA will not edit your comment, and any identifying or 
contact information provided in the body of a comment will be included 
as part of the comment that is placed in the official public docket, 
and made available in EPA's electronic public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.
    i. E-Dockets. Your use of EPA's electronic public docket to submit 
comments to EPA electronically is EPA's preferred method for receiving 
comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and 
follow the online instructions for submitting comments. To access EPA's 
electronic public docket from the EPA Internet Home Page, select 
``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the 
system, select ``search,'' and then key in Docket ID No. OW-2002-0022. 
The system is an ``anonymous access'' system, which means EPA will not 
know your identity, e-mail address, or other contact information unless 
you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID No. OW-2002-0022, Water 
Quality Standards for Kentucky. In contrast to EPA's electronic public 
docket, EPA's e-mail system is not an ``anonymous access'' system. If 
you send an e-mail comment directly to the Docket without going through 
EPA's electronic public docket, EPA's e-mail system automatically 
captures your e-mail address. E-mail addresses that are automatically 
captured by EPA's e-mail system are included as part of the comment 
that is placed in the official public docket, and made available in 
EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address in I.C.1. These electronic 
submissions will be accepted in WordPerfect or ASCII file format. Avoid 
the use of special characters and any form of encryption.
    2. By Mail. Send your comments to: Docket Manager, Attention Docket 
ID No. OW-2002-0022, Water Quality Standards for Kentucky, EPA, Region 
4, Sam Nunn Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, 
Georgia 30303-3104.
    3. By Hand Delivery or Courier. Deliver your comments to: Docket 
Manager, Attention Docket ID No. OW-2002-0022, Water Quality Standards 
for Kentucky, EPA, Region 4, Sam Nunn Atlanta Federal Center, 61 
Forsyth Street, SW., Atlanta, Georgia 30303-3104. Such deliveries are 
only accepted during the Docket's normal hours of operation as 
identified in I.B.1.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:

    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period 
deadline identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
docket identification number in the subject line on the first page 
of your response. It would also be helpful if you provided the name, 
date, and Federal Register citation related to your comments.

II. Background

A. What Are the Applicable Federal Statutory and Regulatory 
Requirements?

    Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA) requires 
States and authorized Tribes to adopt water quality standards for 
waters of the United States within their applicable jurisdictions. Such 
water quality standards must include, at a minimum: (1) Designated uses 
for all water bodies within their jurisdictions, (2) water quality 
criteria necessary to protect the most sensitive of the uses, and (3) 
antidegradation provisions consistent with the regulations at 40 CFR 
131.12.
    Antidegradation is an important tool for States and authorized 
Tribes to use in meeting the CWA's requirement that water quality 
standards protect the public health or welfare, enhance the quality of 
water and meet the objective of the CWA to restore and maintain the 
chemical, physical and biological integrity of the nation's waters.
    EPA's regulation at 40 CFR 131.12 requires that States and 
authorized Tribes adopt antidegradation policies and identify 
implementation methods to provide three levels of water quality 
protection. The first level of protection at 40 CFR 131.12(a)(1) 
requires the maintenance and protection of existing instream water uses 
and the level of water quality necessary to protect those existing 
uses. Protection of existing uses is the floor of water quality 
protection afforded to all waters of the United States. Existing uses 
are ``. . . those uses actually attained in the water body on or after 
November 28, 1975, whether

[[Page 68974]]

or not they are included in the water quality standards.'' (40 CFR 
131.3(e))
    The second level of protection is for high quality waters. High 
quality waters are defined in 40 CFR 131.12(a)(2) as waters where the 
quality of the waters is better than the levels necessary to support 
propagation of fish, shellfish, and wildlife and recreation in and on 
the water. This water quality is to be maintained and protected unless 
the State or authorized Tribe finds, after public participation and 
intergovernmental review, that allowing lower water quality is 
necessary to accommodate important economic or social development in 
the area in which the waters are located. In allowing lower water 
quality, the State or authorized Tribe must assure water quality 
adequate to protect existing uses. Further, the State or authorized 
Tribe must ensure that all applicable statutory and regulatory 
requirements are achieved for all new and existing point sources and 
all cost-effective and reasonable best management practices are 
achieved for nonpoint source control.
    Finally, the third and highest level of antidegradation protection 
is for outstanding national resource waters (ONRWs). If a State or 
authorized Tribe determines that the characteristics of a water body 
constitute an outstanding national resource, such as waters of National 
and State parks and wildlife refuges and waters of exceptional 
recreational or ecological significance, and designates a water body as 
such, then those characteristics must be maintained and protected (see 
40 CFR 131.12(a)(3)).

B. What Are Kentucky's Antidegradation Provisions?

    The Commonwealth's antidegradation regulations are contained in 401 
Kentucky Administrative Register (KAR) 5:029 section 1 and KAR 5:030. 
For the purposes of implementing antidegradation requirements, Kentucky 
places surface waters in one of three categories: ONRWs, exceptional 
waters, and use protected waters. Following is a brief discussion of 
these categories:
    ONRWs. The two criteria that must be met in order for the 
Commonwealth to designate a water body as an ONRW are included in 401 
KAR 5:030, section 1.(1)(a), as follows:

    1. Surface water that meets, at a minimum, the requirements for 
an outstanding state resource water classification found in 401 KAR 
5:031 section 7; and
    2. Surface water that demonstrates to be of national ecological 
or recreational significance.

    The provisions of 401 KAR 5:031 section 7 require the designation 
as an outstanding state resource water for the following: Waters 
designated under the Kentucky Wild Rivers Act; waters designated under 
the Federal Wild and Scenic Rivers Act; waters identified under the 
Kentucky Nature Preserves Act that are contained within a formally 
dedicated nature preserve or are published in the registry of natural 
areas; and waters that support federally recognized endangered or 
threatened species under the Endangered Species Act. Other waters of 
the Commonwealth given consideration for an outstanding state resource 
water designation include: Waters which flow through or are bounded by 
State or Federal forest land; waters that are of exceptional aesthetic 
or ecological value; waters that are a part of a unique geological or 
historical area recognized by State or Federal designation; or a water 
which is a component part of an undisturbed or relatively undisturbed 
watershed that can provide basic scientific data and exhibits two of 
the following characteristics: (1) The water body supports a diverse or 
unique native aquatic flora or fauna; (2) the water body possesses 
physical or chemical characteristics that provide an unusual and 
uncommon aquatic habitat; or (3) the water body provides a unique 
aquatic environment within a physiographic region. (See 401 KAR 5:031 
section 7).
    Kentucky requires that water quality in ONRWs be maintained and 
protected. Temporary or short-term changes in water quality may be 
allowed if the changes will not have a demonstrable impact on the 
ability of the ONRW to support its designation. Kentucky's provisions 
for ONRWs are consistent with EPA's requirements at 40 CFR 
131.12(a)(3).
    Exceptional Waters. Paragraph (2) of 401 KAR 5:029 section 1 
contains the portion of Kentucky's antidegradation policy which 
addresses the requirements for waters with quality that is better than 
the levels necessary to support propagation of fish, shellfish and 
wildlife and recreation in and on the water. Kentucky defines 
exceptional waters in 401 KAR 5:030, section 1.(1)(b), using the 
following criteria:

    1. Surface water designated as a Kentucky Wild River, unless it 
is categorized as an outstanding national resource water;
    2. Outstanding state resource water that does not support a 
federally threatened or endangered aquatic species;
    3. Surface water that fully supports all applicable designated 
uses and contains:
    a. A fish community that is rated ``excellent'' by the use of 
the Index of Biotic Integrity, included in ``Methods for Assessing 
Biological Integrity of Surface Waters,'' incorporated by reference 
in section 4 of this administrative regulation; or
    b. A macroinvertebrate community that is rated ``excellent'' by 
the Macroinvertebrate Bioassessment Index, included in ``A 
Macroinvertebrate Bioassessment Index for Streams of the Interior 
Plateau Ecoregion in Kentucky,'' incorporated by reference in 
section 4 of this administrative regulation; and
    4. Water in Kentucky's Natural Resources and Environmental 
Protection Cabinet's reference reach network.

    Water bodies are included in Kentucky's Reference Reach Network 
after an extensive evaluation of water body and watershed 
characteristics. After initial and secondary screening based on factors 
such as riparian zone condition, surrounding land use, extent of 
hydrologic modification, habitat, and other physical characteristics, 
waters are selected for inclusion in the Reference Reach Network based 
on a review of the following: (1) Condition of the riparian zone, (2) 
bank stability, (3) percentage of fine sediment and algal mats in the 
substrate, (4) amount of suspended solids during normal weather 
conditions, (5) stable bottom habitat, (6) amount of solid waste in the 
water body and its banks, (7) land use, and (8) accessibility.
    Kentucky's process for implementing antidegradation provisions for 
exceptional waters involves the application of specified effluent 
limitations for new or expanded discharges. For example, domestic 
discharges are limited to discharge at levels of 10 mg/l for five-day 
carbonaceous biochemical oxygen demand, 2 mg/l of ammonia nitrogen, 10 
mg/l total suspended solids, and 7 mg/l dissolved oxygen, among others. 
Also, certain discharges are restricted to no more than one-half of the 
limitation that would have been permitted for use protected waters for 
other parameters. These limitations apply to new or expanded 
discharges, unless a permit applicant can meet the following 
requirements:

    * * * the applicant will demonstrate to the satisfaction of the 
cabinet that allowing lower water quality is necessary to 
accommodate important economic or social development in the area in 
which the waters are located following the guidelines in ``Interim 
Economic Guidance for Water Quality Standards Workbook,'' EPA, March 
1995 incorporated by reference in section 4 of this administrative 
regulation and include an alternative analysis that shall consider 
the following:
    1. Discharge to other treatment facilities;
    2. Use of other discharge locations;
    3. Water reuse or recycle;
    4. Process and treatment alternatives; and

[[Page 68975]]

    5. On-site or subsurface disposal.

    KPDES permit renewals with discharges to exceptional waters that 
result in less than a 20 percent increase in pollutant loading are 
exempt from these antidegradation requirements. (See 401 KAR 5:030 
section 1.(3)(a)6.)
    Use protected waters. The Commonwealth's use protected category 
includes a mix of waters. Use protected waters are defined in 401 KAR 
5:030, section 1.(1)(c) as including any ``water not listed in section 
3 of this administrative regulation as (an) outstanding national 
resource water or exceptional water.''
    Kentucky's regulations at 401 KAR 5:030 section 1.(4)(a) provide 
that: ``All existing uses shall be protected and the level of water 
quality necessary to protect the uses shall be assured in the use 
protected water.'' A use protected water is also protected through the 
application of all applicable water quality criteria necessary to 
support its designated uses. In a letter dated May 24, 2001, from Mr. 
Jack A. Wilson, Director, Kentucky Division of Water, to Ms. Beverly 
Banister, Director, EPA Region 4 Water Management Division, the 
Commonwealth gave the following explanation of this category:

    * * * the use-protected category included all waters that were 
not ONRWs or exceptional, i.e., waters that met uses and were 
impaired. It is more clear and straightforward to separate this use 
protected category into two categories: high quality water[s] (Tier 
2) and impaired [waters] (Tier 1).

    Based on this explanation, waters designated for antidegradation 
purposes as use protected waters include: (1) Waters with quality that 
is better than the levels necessary to support propagation of fish, 
shellfish, wildlife, and recreation in and on the water (in addition to 
waters meeting these criteria already designated as exceptional 
waters), (2) waters that just meet their designated aquatic life and 
recreation uses and (3) impaired waters which are not attaining their 
designated uses.

C. Why Is EPA Proposing Federal Antidegradation Provisions for the 
Commonwealth of Kentucky?

    EPA is proposing Federal water quality standards for high quality 
waters in Kentucky because EPA disapproved the Commonwealth's 
antidegradation provisions that were intended to establish requirements 
for high quality waters commensurate with those required by EPA's Water 
Quality Standards regulation at 40 CFR 131.12(a)(2). The Commonwealth's 
provisions only apply to a limited subset of high quality waters rather 
than to all waters whose quality is better than the levels necessary to 
support propagation of fish, shellfish and wildlife and recreation in 
and on the water.
    The following table shows EPA's estimate of the number of stream 
miles and water bodies in each of Kentucky's antidegradation 
categories.

----------------------------------------------------------------------------------------------------------------
                                                                                                    % of total
                       Category of waters                          Stream miles    Water bodies    stream miles
----------------------------------------------------------------------------------------------------------------
      Total.....................................................        49,100.0  ..............          100
                                                                 -----------------
Outstanding national resource waters............................            29.6               3            0.06
Exceptional waters..............................................           665.0              75            1.35
Use protected, but impaired.....................................         3,945.0             700            8.0
Use protected, and not determined to be impaired................        44,460.0           (\1\)           90.6
----------------------------------------------------------------------------------------------------------------
\1\ All others.

    These estimates are based on EPA's analysis of waters currently 
listed in KAR 5:030 section 3, and information provided in the May 24, 
2001, letter from the Kentucky Division of Water to EPA. The mileage 
reported as use protected and not determined to be impaired was 
estimated using the length of waters classified as Partially Supporting 
or Not Supporting, for aquatic life and swimming uses in the ``1998 
Kentucky Report to Congress on Water Quality,'' (i.e., Kentucky's 
305(b) Report) (Kentucky Natural Resources and Environmental Protection 
Cabinet, Division of Water, January 1999). EPA generated the stream 
mile estimates above for those use protected waters determined not to 
be impaired by subtracting the sum of the waters designated as ONRWs, 
waters designated as exceptional waters, and use protected waters, but 
impaired, from the total mileage reported in the Commonwealth.
    Kentucky's approach limits the use of the special protections for 
high quality waters to the Commonwealth's exceptional waters category 
which comprise just 1.35 percent of all its waters. However, Kentucky's 
1998 305(b) Report shows that approximately 67 percent of the 
Commonwealth's unassessed waters are candidates for the high quality 
water protections. This pattern is confirmed by recent intensive 
watershed sampling in the Kentucky, Salt and Licking River basins, as 
well as data from random statewide aquatic life biological sample in 
wadeable streams conducted by the Kentucky Division of Water over the 
last two years. This recent sampling shows that approximately 60 
percent of the sites fully support their designated uses.
    The above information and analysis show that the eligibility 
criteria adopted by the Commonwealth for the exceptional waters 
category results in only a relatively small percentage of surface 
waters receiving the protection of the high quality water provisions at 
401 KAR 5:029 section 1.(2). Therefore, EPA determined that Kentucky's 
exceptional waters category does not include other waters whose quality 
exceed levels necessary to support propagation of fish, shellfish and 
wildlife and recreation in and on the water, as required in 40 CFR 
131.12(a)(2). In addition, Kentucky's implementation procedures for the 
use protected category (401 KAR 5:030 section 1.(4)) do not require 
that the Commonwealth evaluate the necessity of lowering water quality, 
even though this category does include high quality waters.
    In a letter of August 7, 1997, from John H. Hankinson, Jr., EPA 
Region 4 Regional Administrator, to General James E. Bickford, 
Secretary, Commonwealth of Kentucky Natural Resources and Environmental 
Protection Cabinet, EPA Region 4 disapproved the Commonwealth's 
eligibility criteria in 401 KAR 5:030 section 1.(3) for designating 
waters to be given high quality water protection, and specified the 
changes needed for EPA to approve a revised water quality standard. In 
an October 9, 1997, letter from General James E. Bickford, Secretary, 
Commonwealth of Kentucky Natural Resources and Environmental Protection 
Cabinet to John H. Hankinson, Jr., EPA Region 4 Regional

[[Page 68976]]

Administrator, responding to EPA's disapproval, Kentucky stated its 
intention to expand the universe of high quality waters receiving added 
protection from the effects of point source discharges regulated under 
the KPDES program. Kentucky also indicated that the revisions would be 
part of its upcoming triennial review of water quality standards.
    Kentucky began its water quality standards triennial review in 
October 1998 with a public notice and mailing to interested parties of 
its intent to update uses, revise numeric criteria, strengthen mixing 
zone language, and to respond to EPA's 1997 antidegradation 
disapproval. The February 1999 ``Administrative Register of Kentucky'' 
included a notice of intent to revise the water quality standards 
regulation and to hold a public hearing on February 25, 1999. After 
adoption of revisions to Kentucky water quality standards on December 
8, 1999, Kentucky submitted the results of its triennial review to EPA 
on December 15, 1999. However, the revisions did not sufficiently 
broaden the criteria to increase the number of eligible waters for the 
exceptional waters category, consistent with EPA's regulation at 40 CFR 
131.12(a)(2). Therefore on August 30, 2000, EPA Region 4 notified the 
Commonwealth that the high quality waters provisions of Kentucky's 
water quality standards remained disapproved.
    In a letter of May 24, 2001, from Mr. Jack A. Wilson, Director, 
Division of Water, to Ms. Beverly Banister, Director, Water Management 
Division, Kentucky clarified that the exceptional waters category is 
intended to provide a higher level of protection than the level for 
other high quality waters. Several States and authorized Tribes have 
created an additional category of water between high quality waters and 
ONRWs in their antidegradation policy. Kentucky's exceptional waters 
category generally includes more stringent controls than those required 
for high quality waters, but allows more flexibility to make 
adjustments in criteria and in permitting decisions than would normally 
be allowed if the water body were designated as an ONRW. EPA believes 
such a category is consistent with the intent and spirit of the 
antidegradation policy when supplementing the high quality water and 
the ONRW categories.
    The Commonwealth has an active program to identify candidates for 
the exceptional waters category. The Kentucky Division of Water has 
identified 133 segments, which cover approximately 567 stream miles, 
meeting the criteria for inclusion in the exceptional waters category 
since the previous triennial review completed in 1999. These waters 
have been found to meet the exceptional waters criteria based on 
ambient sampling in the Salt, Licking, Upper and Lower Cumberland, 
Tennessee, and Mississippi river basins. Many of these segments have 
been included in Kentucky's Reference Reach Network, and others have 
been found to contain either fish or macroinvertebrate communities 
rated as excellent using the Commonwealth's assessment methodologies 
for evaluation of biological integrity. However, as discussed in this 
section, Kentucky has no separate, readily identified high quality 
waters category commensurate with 40 CFR 131.12(a)(2).

III. Today's Proposed Rule

    Today's Federal Register notice proposes a high quality waters 
antidegradation policy, a definition of waters to which the policy 
would apply and methods for implementing the policy. Consistent with 
section 303(c)(4) of the CWA, if during the Federal rulemaking process, 
Kentucky adopts revisions to its antidegradation provisions which are 
approved by EPA Region 4, the proposal would not be made final. In 
addition, if Kentucky adopts revisions to its antidegradation 
provisions which are approved following publication of a final Federal 
rule, EPA would withdraw its rule.
    EPA is providing an extended comment period in response to a 
request from members of the public. While EPA has a statutory 
obligation to take final action on the proposal in a timely manner, we 
also want to ensure that interested parties have an adequate 
opportunity to prepare and submit comments and to provide Kentucky with 
an opportunity to adopt its own revisions to the Commonwealth's 
antidegradation provisions.

A. What Is the Proposed Policy To Protect Kentucky's High Quality 
Waters?

    EPA is proposing that the antidegradation policy in 40 CFR 
131.12(a)(2) apply to high quality waters in the Commonwealth of 
Kentucky. The Agency notes that the language of the proposed policy is 
somewhat different from 40 CFR 131.12(a)(2). Those differences result 
only from our efforts to make the policy easier to understand, and do 
not suggest any substantive difference in the Agency's interpretation 
of 40 CFR 131.12(a)(2). The proposed high quality waters 
antidegradation policy in section 131.39(a) reads as follows:

    (1) Where the quality of the water is better than levels 
necessary to support propagation of fish, shellfish, and wildlife 
and recreation in and on the water, the Commonwealth of Kentucky 
(hereafter, Commonwealth or Kentucky) shall maintain and protect 
that quality unless Kentucky finds, after full satisfaction of the 
intergovernmental coordination and public participation provisions 
of the Commonwealth's continuing planning process, that allowing 
lower water quality is necessary to accommodate important economic 
or social development in the area in which the water is located.
    (2) Before allowing lower water quality, the Commonwealth shall 
ensure that all measures to fully protect existing uses shall be 
achieved.
    (3) Before allowing lower water quality, the Commonwealth shall 
ensure that the most protective statutory and regulatory 
requirements for all new and existing point sources and all cost-
effective and reasonable best management practices for nonpoint 
source control shall be achieved.

    Today's proposal is substantially the same as Kentucky's current 
antidegradation policy in 401 KAR 5:029 section 1.(2), with the 
critical exception that EPA's proposal does not include the sentence: 
``For point source discharges, water quality shall be maintained and 
protected according to the procedures specified in 401 KAR 5:030, 
section 1.(3).''
    This sentence in Kentucky's policy limits the number of waters 
protected to those identified as exceptional waters. As discussed in 
section II.C., EPA disapproved the Commonwealth's high quality 
antidegradation provisions because the eligibility criteria were not 
sufficiently inclusive.
    EPA recognizes that the Commonwealth has adopted an antidegradation 
policy consistent with the provisions in 40 CFR 131.12(a)(2) for some 
of its high quality waters. EPA is proposing the policy for high 
quality waters in Kentucky, except for ONRWs and exceptional waters, in 
order to include high quality waters not currently recognized as such 
in Kentucky's water quality standards. This would allow the application 
of the antidegradation policy to certain waters now in the 
Commonwealth's use protected waters category.
    EPA's proposed high quality waters policy in conjunction with the 
Commonwealth's existing antidegradation policy provides that before 
authorizing lower water quality in a high quality water, the 
Commonwealth shall ensure the implementation of all measures to fully 
protect existing uses. EPA interprets this provision to mean that 
Kentucky will evaluate the cumulative effects from previous loading 
increases to ensure that water quality will continue to protect 
existing uses. As stated previously, this level of protection is the

[[Page 68977]]

``floor'' of water quality protection afforded to all waters.
    The proposed antidegradation policy for high quality waters further 
provides that before lowering the water quality in high quality waters, 
Kentucky shall ensure that the most protective statutory and regulatory 
requirements for all new and existing point sources and all cost-
effective and reasonable best management practices for nonpoint source 
control shall be achieved.
    EPA does not interpret the nonpoint source provision to require the 
establishment of nonpoint source control requirements where none exist. 
Rather, where nonpoint source control programs or regulatory 
requirements have been established under State authorities, these 
requirements are to be implemented prior to lowering the quality of 
high quality waters (see Memorandum from Tudor T. Davies, Director, EPA 
Office of Science and Technology to EPA Water Management Division 
Directors, Regions 1-10, Subject: Interpretation of Federal 
Antidegradation Regulatory Requirement, February 22, 1994).

B. How Will Kentucky Identify a High Quality Water?

    Today's proposal, if finalized, defines high quality waters as any 
surface water other than those currently designated by the Commonwealth 
as exceptional waters or ONRWs, where the quality of the water is 
better than the levels necessary to support propagation of fish, 
shellfish, and wildlife and recreation in and on the water. EPA's 
current regulation provides a great deal of flexibility to States and 
authorized Tribes in making those decisions.
    Identifying high quality waters is key for antidegradation to be 
effective. In general, States and authorized Tribes identify high 
quality waters using one of two approaches: (1) The parameter-by-
parameter or pollutant-by-pollutant approach or (2) the designational 
or water body-by-water body approach. Under the parameter-by-parameter 
approach, States and authorized Tribes determine whether water quality 
is better than the applicable criteria for a specific parameter or 
pollutant that would be affected by a new discharge or an increase in 
an existing discharge of the pollutant. For example, if dissolved 
oxygen levels were at 7 milligrams per liter (mg/L) and the criteria 
were 5 mg/L, that water body would be a high quality water for 
dissolved oxygen, but might not necessarily be a high quality water for 
another parameter. Such determinations are generally made at the time 
of a permit application for a new discharge or an increase in an 
existing discharge of the pollutant in question. The designational 
approach weighs chemical, physical, biological, or other factors to 
judge a water body's overall quality. EPA has approved both approaches, 
and, under today's proposed rule, either approach or a combination of 
the approaches would be available to the Commonwealth for identifying 
high quality waters.
    Some States use the designational approach to identify high quality 
waters. Under one type of designational approach, a water body must 
attain both the aquatic life and recreational uses to be considered a 
high quality water. For example, a water body that is attaining one of 
it designated uses (such as aquatic life) would not receive an 
antidegradation review if the water body were not attaining its other 
use (such as recreation). EPA has found this approach to be consistent 
with 40 CFR 131.12. There are other ways to implement the designational 
approach. For example, a State could designate a water body as a high 
quality water for that use if the water body were attaining either the 
aquatic life use or the recreational use. Under this approach, an 
antidegradation review would be conducted for aquatic life uses when, 
for example, biological indices rated the macroinvertebrate or fish 
populations as ``good'' even if the fecal coliform densities exceeded 
levels safe for recreation in and on the water.
    In today's proposal, EPA is not requiring a specific approach that 
Kentucky must use in identifying high quality waters. Rather, the 
Agency is continuing its long-standing policy that would allow Kentucky 
to use, as appropriate, biological or chemical data or a combination of 
both on a parameter-by-parameter basis, or a designational approach to 
identify high quality waters. EPA is seeking comments on the pollutant-
by-pollutant and designational approaches for identifying high quality 
waters.
    The Commonwealth may identify high quality waters at the time of a 
permit application for a new discharge or an increase in an existing 
discharge, or may identify high quality waters at any time based on a 
review of ambient data showing that the quality of the water is better 
than the levels necessary to support the propagation of fish, 
shellfish, and wildlife and recreation in and on the water. To comply 
with the antidegradation policy for a high quality water, the 
Commonwealth must make a high quality water determination prior to 
allowing lower water quality in the water body.
    Kentucky, in a May 24, 2001, letter from Jack A. Wilson, Director, 
Kentucky Division of Water, to Ms. Beverly Banister, Director, Water 
Management Division, EPA Region 4, stated, `` * * * the DOW (Division 
of Water) strongly disagrees with the parameter-by-parameter 
approach.'' EPA interprets this statement as a strong preference by the 
Commonwealth that any Federal rule be written in a way not to limit its 
approach for the identification of high quality waters to the use of 
ambient chemical data.
    The Commonwealth's existing antidegradation program uses biological 
data and information to rate and evaluate waters. EPA considers 
Kentucky's biological approach to be a valid framework for identifying 
high quality waters under today's proposal. Kentucky has developed a 
substantial database on the occurrence and diversity of ambient 
macroinvertebrate populations and fish populations found in surface 
waters of the Commonwealth, and has used this data to establish indices 
of relative aquatic health for these two subpopulations of aquatic 
life.
    Based on EPA's review of Kentucky's biomonitoring program, the data 
and the indices generated by the Commonwealth, EPA believes that the 
assessment of any segment resulting in a biological rating of ``good,'' 
rather than ``excellent,'' for either a macroinvertebrate or a fish 
population, when using the methods referenced in 401 KAR 5:030, section 
1.(1)(b)3.a. and b., is sufficient to conclude that the ambient water 
quality of that segment is better than that ``necessary to support 
propagation of fish, shellfish, and wildlife,'' and, therefore, that 
segment should be considered to be a high quality water.
    EPA believes that the Commonwealth, in some cases, has sufficient 
biological data for the assessment of aquatic life uses, and 
determinations for high quality waters, but, in other instances, 
additional data and information may be required. Where additional data 
and information are required for a determination, Kentucky could 
request the permit applicant to collect additional biological data 
using the methodologies referenced in the Commonwealth's water quality 
standards regulation. If no biological data are available for the 
segment's macroinvertebrate or fish population, a survey should be 
conducted for both macroinvertebrate and fish populations; a rating of 
``good'' for either population is sufficient to document that the 
segment is a high quality water. However, EPA also believes that there 
may be some instances where the Commonwealth may choose to collect the 
necessary chemical data.

[[Page 68978]]

    For recreational uses, the Commonwealth may use ambient water 
column data on bacteriological densities. Kentucky's existing water 
quality standards specify fecal coliform bacteriological criteria for 
protection of recreation in and on the water. In making judgments of 
water quality that is better than the levels necessary to support 
recreation in and on the water, the Commonwealth can use ambient data 
for fecal coliform densities. If Kentucky water quality standards are 
revised to include the use of water quality criteria for E. coli or 
enterococci, Kentucky must use the bacteria criteria that are adopted 
and approved at the time a determination for recreation high quality is 
made.
    Under today's proposal, EPA does not require the Commonwealth to 
take a particular approach where there are insufficient data to make a 
definitive determination that a water body is high quality water. In 
the absence of definitive data and information which demonstrates that 
a water body is high quality, the Commonwealth may either consider the 
water body to be a high quality water for the purposes of meeting 
antidegradation permitting requirements, or require the collection of 
additional data for a high quality determination. If the Commonwealth 
considers the water body to be a high quality water, the Commonwealth 
will ensure that all other antidegradation requirements are met prior 
to making a determination as to whether the discharge is necessary to 
accommodate important economic or social development in the area in 
which the waters are located, and whether the discharge will be 
allowed.
    EPA is soliciting comments on the approach in today's proposal, 
which provides Kentucky broad latitude in identifying high quality 
waters. EPA recognizes that Kentucky is likely to use the biological 
indices developed by the Commonwealth for rating ambient 
macroinvertebrate and fish populations, as an acceptable means for 
identifying the Commonwealth's high quality waters. EPA specifically 
requests comment on the use of biological data, and requests that 
commenters identify cases where a water body or water segment would not 
be identified as a high quality water using biological data, but that 
water body or segment would be demonstrated to be a high quality water 
through the consideration of ambient chemical data.
    EPA also solicits comments on whether the regulation, if made 
final, should require the Commonwealth to use a particular approach in 
identifying high quality waters. EPA considered specifying the 
parameter-by-parameter approach using only chemical data in the 
proposed rule. The parameter-by-parameter approach takes advantage of 
water column data, which, in many States, are more readily available 
than other types of data. Therefore, EPA is also requesting comments on 
this alternative approach to today's proposal.

C. How Will Kentucky Implement the Proposed High Quality Waters Policy?

    1. Significance of the discharge. Proposed activities that could 
result in a lowering of water quality in a high quality water, 
including proposed KPDES permits for new or increased discharges, would 
require an antidegradation review, unless the Commonwealth determines 
that the proposed activity will not result in a significant lowering of 
water quality. EPA's practice defers to States' judgment on identifying 
when an antidegradation review would not be needed. EPA does not 
interpret the antidegradation policy to preclude a determination that 
certain proposed new discharges or increases in existing discharges may 
have an insignificant or de minimis impact on water quality and, 
therefore, may not require an antidegradation review.
    EPA's water quality standards regulation does not specify a 
threshold below which an antidegradation review would not be needed. 
However, EPA has long interpreted the antidegradation policy to allow a 
determination that certain proposed new discharges or increases in 
existing discharges may have an insignificant or de minimis impact on 
water quality and, therefore, may not require an antidegradation 
review. (See, for example, the November 10, 1986, memorandum signed by 
William A. Whittington, Director of the Office of Water Regulations and 
Standards, and James R. Elder, Director, Office of Water Enforcement 
and Permits, indicating that one of the principles of the 
antidegradation policy is a focus on significant actions.)
    EPA has reflected this principle in the development of its own 
rulemakings. For example, in the ``Proposed Water Quality Guidance for 
the Great Lakes System,'' (GLI) 58 FR 20802, April 16, 1993, EPA 
defined the term ``significant lowering of water quality'' and 
discussed the concept generally, stating that:

    EPA and the Great Lakes States have chosen to prioritize actions 
that pose a threat to the protection and maintenance of water 
quality in high quality waters by focusing the Proposed Guidance on 
significant lowering of water quality. (Id., p. 20894)

    In the proposed Great Lakes rule, EPA considered certain chemicals 
to be bioaccumulative chemicals of concern (BCCs) and distinguished 
those chemicals from other parameters affecting water quality. For 
BCCs, EPA also considered any increase in mass loading of such a 
pollutant to result in a significant lowering of water quality. But for 
other pollutants, EPA included other factors such as assimilative 
capacity (in addition to loading) in determining whether a proposed 
discharge would result in a significant lowering of water quality. The 
proposed Great Lakes rule also noted that the decision-maker can make a 
case-by-case determination regarding the significant lowering of water 
quality based on other relevant considerations. The final rule did not 
reflect the significant lowering of water quality based on other 
relevant factors because it dealt only with BCCs.
    As for non-BCCs, the Agency also discussed in the proposed Great 
Lakes rule the position that certain proposed discharges may not result 
in a significant lowering of water quality and, therefore, would not 
require an antidegradation review. EPA indicated that the definition of 
significant lowering of water quality for non-BCC pollutants is 
adequate to maintain and protect water quality of in the Great Lakes 
system. EPA also stated:

    It does not undercut the requirement that limitations protect 
existing uses, i.e., protect all applicable water quality standards. 
Rather, it limits the requirement to conduct an antidegradation 
review to situations when a source sought to increase existing 
permit limitations on the rate of mass loading, except as the 
increase is de minimis or there would be no change in ambient water 
quality, and thereby will limit the number of actions subject to a 
full antidegradation review. EPA believes this is an appropriate 
balance between the need to protect water quality for these 
substances and the burden, to both the regulated community and the 
regulatory agencies, of conducting an antidegradation review. 
(emphasis added). (Id., p. 20895)

    EPA has also discussed the concept of significant degradation in 
the ``Advance Notice of Proposed Rulemaking,'' 63 FR 36742, July 7, 
1998. EPA noted the use of significance determinations by States and 
Tribes and commented upon the concept generally:

    Although not discussed in 40 CFR section 131.12 of the water 
quality standards regulation, State and on occasion Tribal Tier 2 
implementation procedures often include guidelines which are used to 
determine when the water quality degradation that will result from a 
proposed activity is significant enough to warrant further 
antidegradation review. Where the degradation is not significant, 
the antidegradation review is

[[Page 68979]]

typically terminated for that proposed activity. The significance 
evaluation is usually conducted on a pollutant-by-pollutant basis, 
even where a water body-by-water body approach is used to identify 
high quality waters, and significant degradation for any one 
pollutant triggers further review for that pollutant. Applying 
antidegradation requirements only to activities that will result in 
significant degradation is a useful approach that allows States and 
Tribes to focus limited resources where they may result in the 
greatest environmental protection. (emphasis added). (Id., p. 36783)

    EPA considers the rationale set forth in the memorandum and these 
notices of proposed rulemakings, relative to the application of 
antidegradation review to activities involving a significant lowering 
of water quality, to be equally applicable here.
    EPA believes that the assessment of the degree to which water 
quality is projected to be lowered as a result of proposed activities 
should consider factors such as:
    [sbull] The projected magnitude of impact on the receiving stream 
(or possible effects on water bodies downstream of the receiving 
stream),
    [sbull] The projected reduction in the assimilative capacity of the 
receiving stream(s), and potential impacts on sediment and biota,
    [sbull] The magnitude of the increase in the discharge from a 
facility over existing or previously permitted discharges (or existing 
discharge loadings),
    [sbull] The temporary nature of lowering water quality, or
    [sbull] An evaluation which captures a combination of these 
factors.
    These factors are similar to those which EPA Region 4 included in 
draft guidance to Region 4 States and Tribes on this issue. (See May 7, 
1996, letter from Fritz Wagener, Chief Water Quality Standards Section 
to Terry Anderson, Water Quality Branch, Kentucky Division of Water.) 
However, this guidance also cautions States that the use of too high of 
a threshold in a determination of de minimis degradation could unduly 
restrict the number of proposed activities that are subject to a full 
antidegradation review.
    EPA also believes that some situations will result in little or no 
impact, and these situations do not rise to the level that warrants 
further consideration under the high quality waters provisions of the 
antidegradation policy. Such a situation might involve the issuance of 
a general KPDES permit for a category of discharges where no water 
quality impact, or a very minimal water quality impact, is expected to 
result from the cumulative effect of all discharges that are authorized 
by the issuance of the general permit.
    2. Alternatives to lowering water quality. Those most likely to be 
indirectly affected by this rulemaking are persons requesting new 
permits to discharge into high quality waters and current permittees 
who are requesting a revision of their permits to expand their 
discharges into high quality waters. If the Commonwealth determines 
that the new or expanded discharge could result in a significant 
lowering of water quality, the proposed regulation for implementing the 
high quality water policy requires the Commonwealth before authorizing 
the lowering of water quality to determine that an increased discharge 
is necessary and that the lowering of water quality will accommodate 
important economic or social development. In making that determination, 
the Commonwealth would evaluate whether there are alternatives that 
would avoid the need to lower water quality and whether the lowering of 
water quality is important for economic and social development in the 
area of the discharge.
    EPA considers pollution prevention and enhanced treatment 
alternatives analyses as an appropriate starting point and of 
particular importance in an antidegradation review for both industrial 
and municipal dischargers. Given the variety of engineering approaches 
to pollution control, a number of options are available that could 
reduce or eliminate the anticipated lowering of water quality. Some of 
these include substituting less-toxic or less-bioaccumulative chemicals 
for the toxic or bioaccumulative chemical. Another approach could 
involve water conservation to reduce the overall volume of waste water 
and possibly reduce pollutant mass loadings. Other approaches could 
include more careful control of the materials in the process stream, 
the recycle or reuse of waste byproducts, and operational changes to 
reduce the quantities of waste. Kentucky would need to make a 
determination that an alternative or combination of alternatives is 
cost-effective. If cost-effective pollution prevention alternatives are 
available, there would be no need for the lowering of water quality.
    If the pollution prevention alternatives alone were not sufficient 
to eliminate the necessity for lowering of water quality, Kentucky 
would focus on ensuring that the actual degradation of the high quality 
water is reduced to the greatest extent practicable. EPA expects that 
Kentucky would evaluate whether the relative cost of the least costly 
option for enhanced treatment would still allow the proposed activity 
to occur without resulting in a significant lowering of water quality. 
EPA has not established a benchmark for determining whether alternative 
or enhanced treatment options are affordable. Kentucky would make the 
determination.
    As described in section II.B, Kentucky has adopted implementation 
procedures for exceptional waters at 401 KAR 5:030 section 1.(3). These 
procedures require the consideration of the following discharge and 
enhanced treatment alternatives in a demonstration that allowing lower 
water quality is necessary to accommodate important economic or social 
development in the area in which the waters are located:

    1. Discharge to other treatment facilities;
    2. Use of other discharge locations;
    3. Water reuse or recycling;
    4. Process or treatment alternatives; and
    5. On-site or subsurface disposal.

    Kentucky's current regulations limit the application of this 
evaluation process to exceptional waters. EPA did not propose these 
specific elements for consideration in high quality waters because they 
might limit the type of information that the Commonwealth could 
potentially use in making a determination on the proposed lowering of 
water quality. For example, a more costly alternative could be 
available which might result in less water quality degradation, but the 
additional cost might be considered to be reasonable, in light of the 
degradation that would occur. Although EPA chose not to adopt 
Kentucky's procedures for exceptional waters for today's proposal, the 
Agency solicits comment on whether the Agency should use these 
provisions rather than the more general ones included in today's 
proposal.
    3. Impact of lowering water quality. If the increased loading is 
determined to be necessary, Kentucky would then have to determine that 
the lowering of water quality would support important economic or 
social development in the area where the discharge is to occur. 
Kentucky's current regulations include a methodology (``The Interim 
Economic Guidance for Water Quality Standards: Workbook,'' U.S. EPA, 
1995) for an applicant to follow when requesting a new or significantly 
increased discharge in exceptional waters. EPA believes that several 
types of analyses could be used to determine the effect of more 
stringent controls on the economic and social well-being of a 
community. Therefore, the proposed rule does not limit the Commonwealth 
to one methodology. The Commonwealth could develop or

[[Page 68980]]

identify guidance for applicants to use in evaluating the socioeconomic 
benefits to the affected community. The Agency would be particularly 
interested in receiving any peer-reviewed methodologies or literature 
relevant to these analyses.
    Antidegradation reviews are typically triggered when a new or 
increased discharge is requested as part of a CWA section 402 KPDES 
permit, CWA section 404 dredge and fill permits, and other activities 
requiring a CWA 401 certification. Some States conduct antidegradation 
reviews as part of their continuing planning process or consider 
antidegradation reviews as part of their watershed planning process.
    On October 1, 1999, Kentucky proposed revisions to the 
Commonwealth's water quality standards which included specific 
provisions for evaluation of new and expanded discharges to the 
category of use protected waters. These proposed provisions comprised 
an evaluation process for consideration of lowering water quality in 
use protected waters. However, the provisions were subsequently 
withdrawn from consideration prior to final adoption of the revisions 
to Kentucky's antidegradation provisions on December 8, 1999.
    EPA is requesting comment on whether Kentucky's detailed October 1, 
1999, proposal should be part of the final Federal regulation itself, 
or used to implement the broader regulatory language in today's 
proposed rule. Kentucky recommended in a letter of May 24, 2001, from 
Mr. Jack A. Wilson, Director, Division of Water, to Ms. Beverly 
Banister, Director, Water Management Division, that EPA pursue an 
approach based on the provisions formally proposed for adoption as 
revisions to Kentucky water quality standards on October 1, 1999, 
during the triennial review conducted by the Commonwealth. In that 
proposal, Kentucky included a socioeconomic demonstration, including an 
alternatives analysis, for the category of waters defined as ``use 
protected'' waters, but these provisions were withdrawn prior to 
adoption of the triennial review revisions to Kentucky water quality 
standards. As discussed in section B, the use protected category of 
waters includes any water not designated as an exceptional water or an 
outstanding national resource water by the Commonwealth. Kentucky also 
suggested that waters currently listed pursuant to CWA section 303(d) 
as having ``impaired uses'' be excluded from high quality water 
antidegradation requirements.
    The eleven factors included in the October 1, 1999, proposal were:

    1. The effect of the facility on an existing environmental or 
public health problem;
    2. The increase or avoidance of a decrease in employment;
    3. The increase in production level;
    4. An increase in efficiency;
    5. Industrial, commercial, or residential growth;
    6. Any other economic or social benefit to the community;
    7. Discharge to other treatment facilities;
    8. Use of other discharge locations;
    9. Water reuse or recycle;
    10. Process and treatment alternatives; and
    11. On site or sub-surface disposal.

    EPA did not choose to include this level of specificity in the 
proposed rule because the list may not include all of the factors or 
alternatives that might arise in every circumstance. Further, EPA's 
historical position is that the States should retain some discretion in 
identifying the relevant factors to examine and the threshold of 
socioeconomic benefits necessary to justify a lowering of water quality 
in a high quality water.
    EPA is also requesting comment on another alternative to today's 
proposal that would expand the number of waters in the exceptional 
waters category. Under such an approach, the entire suite of Kentucky's 
exceptional water implementation provisions in 401 KAR 5:030, section 
1.(1)(a) and (b) would apply to all high quality waters in the 
Commonwealth. As stated previously in section II.B., Kentucky's 
exceptional waters implementation provisions generally include more 
stringent controls than those required by EPA's regulations at 40 CFR 
131.12(a)(2) for high quality waters. EPA also recognizes that the 
Kentucky Division of Water has stated that portions of the 
implementation provisions for exceptional waters are more detailed than 
the Division would consider as applying to high quality waters. 
Therefore, any consideration of this alternative for inclusion in a 
final rule would be conditioned upon an agreement by the Commonwealth 
that application of all exceptional water implementation provisions was 
appropriate for all high quality waters in the Commonwealth.
    4. Administrative process. EPA believes that the Commonwealth's 
existing administrative processes for public review of proposed 
decisions for waters protected under the provisions of 401 KAR 5:029 
section 1.(2) may be used for all high quality waters. Kentucky's 
existing mechanisms for intergovernmental coordination and public 
participation processes in antidegradation decisions for the 
Commonwealth's existing categories of surface waters will serve 
decision-making well on all high quality waters. These existing 
administrative processes are contained in 401 KAR 5:030, 401 KAR 5:075, 
and sections .015, .017, .160, .270, .280, and .320 of Kentucky Revised 
Statute (KRS) chapter 013A. These provisions include the following:
    A copy of the public notice is mailed to:
    1. The applicant,
    2. EPA Region 4,
    3. Federal and State agencies with jurisdiction over fish, 
shellfish and wildlife resources, the Advisory Council on Historic 
Preservation, Kentucky Historical Society and other appropriate 
authorities, including any affected States,
    4. The U.S. Corps of Engineers, the U.S. Fish and Wildlife Service, 
and the National Marine Fisheries Service,
    5. Any user identified in the permit application of a privately-
owned treatment works, and
    6. Persons on a mailing list developed by the Kentucky Division of 
Water by:

--Including those who request in writing to be on the list,
--Soliciting persons from lists of participants in past permit 
proceedings in the area, and
--Notifying the public of the opportunity to be put on the mailing 
list through periodic publication in the public press and in such 
publications as newsletters, environmental bulletins, or State law 
journals.

    In addition, KDOW maintains a list of Electronic Mail addresses as 
a replacement or as a supplement to its mailing list, and publishes a 
notice of proposed KPDES permitting actions on the KDOW web site. For 
major KPDES permits, Kentucky Division of Water is required to publish 
a notice in a daily or weekly newspaper in the area potentially 
affected by the facility or activity.
    EPA believes that Kentucky's public participation processes are 
consistent with the Agency's requirements and therefore, does not see 
the need for additional implementing regulations for this purpose. For 
an example of a Public Notice which includes notification that 
provisions of the Commonwealth's antidegradation policy have been 
applied in the development of KPDES permit conditions, please visit the 
Web site: http://water.nr.state.ky.us/dow/2002-23.htm.
    EPA, in developing today's proposed rule, reviewed the provisions 
of Kentucky Revised Statutes chapter 013A00 section .100, which require 
an administrative body in the Commonwealth to prescribe by 
administrative regulation, the

[[Page 68981]]

implementation, or interpretation of a statement, policy, procedure, or 
other requirement of general applicability. EPA acknowledges that many 
of the details and/or options for implementing the proposed rule are 
outlined in the notice of today's proposed rule. While EPA is 
publishing today's proposed rule based on the conclusion that the 
Commonwealth should be in a position to implement the rule as proposed, 
the level of detail in any final rule will be determined after a 
thorough review of all comments that relate to this statutory provision 
limiting Kentucky's ability to implement the regulation.
    EPA is particularly interested in receiving comments relating to 
whether today's proposal provides a sufficient level of detail and 
provides an adequate regulatory basis for the Commonwealth (1) to 
consider protection of high quality waters in the Commonwealth, and (2) 
to issue KPDES permits in cases where important social or economic 
development can be demonstrated to be necessary for lowering of water 
quality in these high quality waters. In light of Kentucky's statutory 
provision, the Agency also seeks comment on whether some of the 
guidance set forth in this notice should instead be codified as a part 
of the rule.

D. What Are the Potential Cost Implications of the Proposed Rule?

    The total annualized cost of today's proposed rule for both the 
Commonwealth and the dischargers could range from $127,000 to 
$3,000,000. The proposal does not impose any predictable impacts with 
the exception that EPA's rule could increase the number of waters that 
may benefit from high quality waters protection. However, economic 
consequences that would flow from this proposal are uncertain because 
they are wholly dependent on discretionary activities of individual 
dischargers and the Commonwealth.
    If the Commonwealth were to identify high quality waters as a 
result of this rule, all new and existing dischargers wanting to 
increase their discharges into those waters would have to ask Kentucky 
to authorize the discharge, including any lowering of the water 
quality. If Kentucky were to grant the request, the only cost to the 
discharger would be the cost of its request (and supporting 
documentation) to Kentucky.
    If Kentucky were to deny the request to lower water quality, the 
discharger would bear the additional cost for the controls needed to 
avoid lowering the water quality. Economic consequences flowing from 
EPA's proposal if finalized would depend on the Commonwealth's actions 
(including waiving antidegradation reviews for increased discharges 
that it determines would not significantly affect water quality). Given 
the uncertainty of possible outcomes, EPA cannot fully predict the 
economic consequence of its action.
    Although this proposed rule does not directly impact small 
entities, EPA nonetheless tried to examine the costs of having to 
supply the necessary documentation to support a request for a discharge 
that would lower water quality for a high quality water in Kentucky. 
EPA examined the costs of submitting the analyses and concluded that, 
relying on conservative assumptions, this cost could range from $2,300 
to $30,000 for a minor discharger and $10,000 to $72,000 for a major 
discharger. Small entities may be more likely to be classified as minor 
dischargers than as major dischargers; minor dischargers may be less 
likely to request increases in discharges because they discharge and 
are permitted for fewer toxic pollutants, which are more likely to 
adversely affect water quality in small amounts triggering an 
antidegradation review. However, EPA cannot determine the number of 
small entities that may incur this onetime cost, or the impact of this 
cost on affected small entities (because high quality waters in the 
State of Kentucky have not been identified, and the specific facilities 
or types of facilities likely to be affected cannot be estimated). 
Nonetheless, given the low magnitude of these costs, that they are 
onetime costs, and that increased discharges are likely to be 
associated with increases in production, revenues (which could result 
in a change in classification from small entities to large entities), 
and profits, the costs would not likely impose a significant economic 
impact on a substantial number of small entities.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Review)

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:

    1. Have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    2. Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    3. Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    4. Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Executive Order 13045 (Protection of Children From Environmental 
Health Risks and Safety Risks)

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    The proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866. 
Further, it does not concern an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children.

C. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States,

[[Page 68982]]

on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132. The 
proposed rule would not affect the nature of the relationship between 
EPA and States generally, for the rule only applies to high quality 
waters in Kentucky. Further, the proposed rule would not substantially 
affect the relationship of EPA and the Commonwealth of Kentucky, or the 
distribution of power or responsibilities between EPA and the various 
levels of government. The proposed rule would not alter the State's 
authority to issue KPDES permits or the State's considerable discretion 
in implementing the antidegradation high quality waters provisions. 
Further, this proposed rule would not preclude Kentucky from adopting 
water quality standards that meet the requirements of the CWA. Thus, 
Executive Order 13132 does not apply to this rule.
    Although Executive Order 13132 does not apply to this rule, EPA did 
consult with representatives of the Commonwealth of Kentucky in 
developing this rule. EPA met with representatives of the Kentucky 
Division of Water on December 13, 2001, and on December 14, 2001, with 
representatives of the Kentucky Natural Resources and Environmental 
Protection Cabinet and the Division of Water on approaches addressed in 
the proposal. The representatives with whom EPA met expressed strong 
disagreement with the parameter-by-parameter approach to identifying 
high quality waters. Their strong preference was for any Federal rule 
not to limit Kentucky's approach for the identification of high quality 
waters to the use of ambient chemical data. The Commonwealth's existing 
antidegradation program uses biological data and information to rate 
and evaluate waters. EPA is proposing to continue its longstanding 
policy that would allow Kentucky to use, as appropriate, biological 
data, chemical data or a combination of both types of data on a 
parameter-by-parameter basis or a designational approach to identify 
high quality waters.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials. EPA plans to continue to help Kentucky 
adopt its own antidegradation high quality waters provisions so that 
EPA will not have to finalize the rule. In addition, the proposed rule 
provides an extended 120 day comment period which will help provide 
additional time for the Commonwealth.

D. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have a substantial direct effect on tribal governments, on the 
relationship between the Federal government and Indial tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
There are no Indian tribes in Kentucky. Thus, Executive Order 13175 
does not apply to this rule. In the spirit of Executive Order 13175, 
and consistent with EPA policy to promote communications between EPA 
and tribal governments, EPA specifically solicits comment on this 
proposed rule from tribal officials.

E. Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use)

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

F. Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. It does not include any information collection, reporting 
or recordkeeping requirements. Burden means the total time, effort or 
financial resources expended by persons to generate, maintain, retain, 
or disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purpose of 
collecting, validating and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

G. Regulatory Flexibility Act, as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    The Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 
601 et seq.), generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business 
according to RFA default definitions for small business (based on SBA 
size standards); (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities.
    The RFA requires analysis of the impacts of a rule on the small 
entities subject to the rule's requirements. See United States 
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996). 
Today's proposed rule establishes

[[Page 68983]]

no requirements applicable to small entities, and so is not susceptible 
to regulatory flexibility analysis as prescribed by the RFA. (``[N]o 
[regulatory flexibility] analysis is necessary when an agency 
determines that the rule will not have a significant economic impact on 
a substantial number of small entities that are subject to the 
requirements of the rule,'' United Distribution at 1170, quoting Mid-
Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. Cir. 1985) (emphasis 
added by United Distribution court).) The Agency is thus certifying 
that today's proposed rule will not have a significant economic impact 
on a substantial number of small entities, within the meaning of the 
RFA.
    Under the CWA water quality standards program, States must adopt 
water quality standards for their waters that include antidegradation 
policies and implementation methods and must submit those water quality 
standards to EPA for approval; if the Agency disapproves a State 
standard and the State does not adopt appropriate revisions to address 
EPA's disapproval, EPA must promulgate standards consistent with the 
statutory requirements. EPA also has the authority to promulgate uses 
and criteria in any case where the Administrator determines that a new 
or revised standard is necessary to meet the requirements of the Act. 
These State standards (or EPA-promulgated standards) are implemented 
through various water quality control programs including the National 
Pollutant Discharge Elimination System (NPDES) program, which limits 
discharges to navigable waters except in compliance with an EPA permit 
or a permit issued under an approved State program. The CWA requires 
that all NPDES permits include any limits on discharges that are 
necessary to meet applicable water quality standards.
    Thus, under the CWA, EPA's promulgation of water quality standards 
establishes standards that the State implements through the NPDES 
permit process. The State has discretion in deciding how to meet the 
water quality standards and in developing discharge limits as needed to 
meet the standards. While the State's implementation of Federally 
promulgated water quality standards may result in new or revised 
discharge limits being placed on small entities, the standards 
themselves do not apply directly to any discharger, including small 
entities.
    Today's proposed rule, as explained earlier, does not itself 
establish any requirements that are directly applicable to small 
entities. As a result of this action, the Commonwealth of Kentucky will 
need to ensure that permits it issues include any limitations on 
discharges necessary to comply with the antidegradation policy and 
procedures for high quality waters established in the final rule. In 
doing so, the Commonwealth will have a number of discretionary choices 
associated with permit writing. While Kentucky's implementation of the 
rule may ultimately result in some new or revised permit conditions for 
some dischargers, including small entities, EPA's action today does not 
impose any of these as yet unknown requirements on small entities.

H. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and Tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including Tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of small governments to have meaningful and timely input in 
the development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of title II of the UMRA) for State, local or 
Tribal governments or the private sector. The proposed rule imposes no 
enforceable duty on the State or any local or Tribal government or the 
private sector; rather this rule proposes an antidegradation policy and 
implementation methods for certain high quality waters in Kentucky 
which, when combined with the uses Kentucky designated for the waters 
of the Commonwealth and the water quality criteria adopted to protect 
the designated uses, constitute the water quality standards for high 
quality waters. The Commonwealth may use these resulting water quality 
standards in implementing its water quality control programs. Today's 
proposed rule does not regulate or affect any entity and, therefore, is 
not subject to the requirements of sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect any small 
governments. As stated, the proposed rule imposes no enforceable 
requirements on any party, including small governments. Moreover, any 
water quality standards, including those proposed here, apply broadly 
to dischargers and are not uniquely applicable to small governments. 
Thus this proposed rule is not subject to the requirements of section 
203 of the UMRA.

I. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposal does not involve technical standards. Therefore, EPA 
is not considering the use of any voluntary consensus standards. EPA 
welcomes comments on this aspect of the proposed rulemaking and, 
specifically, invites the public to identify potentially applicable 
voluntary consensus standards and to explain why such

[[Page 68984]]

standards should be used in this regulation.

J. Endangered Species Act

    Pursuant to section 7 of the Endangered Species Act (ESA), 16 
U.S.C. 1536, in consultation with the U.S. Fish and Wildlife Service 
(FWS) and National Marine Fisheries Service (NMFS), Federal agencies 
must ensure that their actions are not likely to jeopardize the 
continued existence of any listed, threatened or endangered species or 
result in the destruction or adverse modification of designated 
critical habitat of such species. Today's proposal would extend 
antidegradation protection for waters that presently may be under-
protected by Kentucky's standards and would potentially improve the 
protection afforded to threatened and endangered species.
    The U.S. Fish and Wildlife Service (the Service or FWS) has been 
involved in several ways during the development of the various 
provisions of 401 KAR 5:030, and has supported the revision to 
Kentucky's water quality standards which established 401 KAR 5:030 as 
new regulatory provisions of the Commonwealth. In a letter dated 
September 11, 1995, from Dr. Lee A. Barclay, Cookeville, Tennessee 
Field Supervisor, to Fritz Wagener, Chief, Water Quality Standards 
Section, EPA Region 4, the Service responded to EPA Region 4's request 
for comments on the initially adopted antidegradation implementation 
procedures, as follows: ``The Service endorses this revision to 
Kentucky's water quality standards.''
    In addition, EPA and the Service conducted an informal consultation 
of EPA's August 30, 2000, approval of other revisions to Kentucky's 
standards. The Service provided comments on the EPA's draft Biological 
Evaluation of the standards revisions by letter November 1, 2000. On 
July 10, 2001, the informal consultation was completed, based on the 
Service's concurrence submitted from Dr. Lee A. Barclay, Cookeville, 
Tennessee Field Supervisor, FWS, to Ms. Beverly H. Banister, Director, 
Water Management Division, EPA Region 4, that the revisions to the 
standards were not likely to adversely affect threatened or endangered 
species.
    The Service's endorsement of Kentucky's water quality standards 
pertains only to compliance with Endangered Species Act. EPA determines 
whether the State or Tribal water quality standards are in compliance 
with the CWA and implementing regulations.
    EPA is transmitting this proposed rule to the Service for review 
and comment, concurrent with the publication of today's notice. That 
transmittal constitutes EPA's initiation of informal consultation with 
the Service on this proposed rule, pursuant to section 7 of the 
Endangered Species Act and its implementing regulations. EPA will 
continue to work closely with the Service to ensure the final rule will 
not adversely affect threatened or endangered species.

K. Plain Language

    Executive order 12886 directs each agency to write all rules in 
plain language. We invite your comments on how to make this proposed 
rule easier to understand. For example:

--Have we organized the material to suit your needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that isn't clear?
--Would a different (grouping and order of sections, use of headings, 
paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--What else could we do to make the rule easier to understand?

List of Subjects in 40 CFR Part 131

    Environmental protection, Indian lands, Intergovernmental 
relations, Reporting and recordkeeping requirements, Water pollution 
control.

    Dated: November 7, 2002.
Christine Todd Whitman,
Administrator.
    For the reasons set out in the preamble, EPA proposes to amend 40 
CFR part 131 as follows:

PART 131--WATER QUALITY STANDARDS

    1. The authority citation for part 131 continues to read as 
follows:

    Authority: 33 U.S.C. 1251 et seq.

Subpart D--[Amended]

    2. Section 131.39 is added to read as follows:


Sec.  131.39  Kentucky.

    (a) What antidegradation policy applies to high quality waters in 
the Commonwealth of Kentucky? (1) Where the quality of the water is 
better than levels necessary to support propagation of fish, shellfish, 
and wildlife and recreation in and on the water, the Commonwealth of 
Kentucky (hereafter, Commonwealth or Kentucky) shall maintain and 
protect that quality unless Kentucky finds, after full satisfaction of 
the intergovernmental coordination and public participation provisions 
of the Commonwealth's continuing planning process, that allowing lower 
water quality is necessary to accommodate important economic or social 
development in the area in which the water is located.
    (2) Before allowing lower water quality, the Commonwealth shall 
ensure that all measures to fully protect existing uses are 
implemented.
    (3) Before allowing lower water quality, the Commonwealth shall 
ensure that the most protective statutory and regulatory requirements 
for all new and existing point sources and all cost-effective and 
reasonable best management practices for nonpoint source control shall 
be achieved.
    (b) What are high quality waters? High quality waters include any 
surface water of the United States within the Commonwealth of Kentucky 
where the quality of the water is better than that necessary to support 
propagation of fish, shellfish, and wildlife and recreation in and on 
the water, except for waters regulated by Kentucky under 401 Kentucky 
Administrative Register 5:030 sections 1.(1)(a) and (b).
    (c) How will the Commonwealth evaluate requests to lower water 
quality? The Commonwealth shall evaluate the following information when 
deciding whether to approve a request to lower water quality in a high 
quality water:
    (1) Alternatives to the Request to Lower Water Quality. Any cost 
effective pollution prevention alternatives, enhanced treatment 
techniques, or other alternatives that are available to the entity, 
that would eliminate or significantly reduce the extent to which the 
increased loading results in a lowering of water quality.
    (2) Important Economic or Social Development. The economic or 
social development and the benefits to the area in which the waters are 
located that will be foregone if the lowering of water quality is not 
allowed.
[FR Doc. 02-28922 Filed 11-13-02; 8:45 am]
BILLING CODE 6560-50-P