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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Comments on Proposed Changes to State Water Quality Standards  Posted: October 24, 2012

Peter Goodmann
Kentucky Division of Water
200 Fair Oaks Lane
Frankfort, Kentucky 40601

By email only Peter.Goodmann@ky.gov

Re: Proposed Revisions to Water Quality Standards Regulations
401 KAR 10:001, 10:026, 10:030, 10:031

Dear Mr. Goodmann:

These comments are submitted on behalf of the Board and membership of the Kentucky Resources Council, Inc. The Council is a nonprofit membership based organization incorporated under the laws of the Commonwealth of Kentucky and dedicated to prudent use and conservation of the natural resources of the Commonwealth. KRC members include individuals who use and enjoy the water resources of the Commonwealth for drinking water and other consumptive uses, as well as for recreation in and on the water, fishing, and other recreational uses.

The Council and its members will be adversely affected, and aggrieved, within the meaning of relevant statutes, by proposed changes to the state water quality regulations that substantially weaken the scrutiny of the addition of nutrients to the waters of the Commonwealth, and urge the Cabinet to reconsider the proposed change to the definition of “eutrophication” in 401 KAR 10:001.

Specific comments follow.

401 KAR 10:001 Section 1(30) and 401 KAR 10:031 Section 1

The Cabinet has proposed a significant narrowing of the current definition of “eutrophication” which would limit the definition to the enrichment of surface waters by the addition or discharge of a nutrient, to those instances where adverse effects on water chemistry and on indigenous aquatic communities has already resulted.

Currently, the term is defined as the “enrichment of a surface water by the addition or discharge of a nutrient.” The state water quality standards addressing eutrophication are found at 401 KAR 10:031 and provide that “In lakes and reservoirs and their tributaries, and other surface waters where eutrophication problems may exist, nitrogen, phosphorus, carbon, and contributing trace element discharges shall be limited in accordance with:

(1) The scope of the problem;

(2) The geography of the affected area; and

(3) Relative contributions from existing and proposed sources.”

The new definition and corresponding water quality standard limits significantly the instances in which the Cabinet may act to limit nutrient discharges, requiring not only that problems associated with the enrichment of waters with nutrients “may exist,” but rather that such problems do exist with a severity that defines end-state eutrophic status. In so doing, the Cabinet hamstrings the agency in regulation of nutrient discharges to cases where the addition of nutrients has already manifest adverse effects, not only to changes in water chemistry but also observable impacts on aquatic life and aquatic plant and animal communities.

Given that the agency is still years away from fully characterizing the water quality of many of Kentucky’s waters, and given further that nutrient pollution is responsible for the failure of a significant number of Kentucky’s impaired waters to achieve the water quality standards for the designated uses, this significant step backwards in regulating nutrient discharges is difficult to comprehend.

The effect of the redefinition of “eutrophication” is to limit the term to those instances where the eutrophication process has already resulted in substantial damage to the aquatic ecosystem. Rather than defining the process of eutrophication, the Cabinet has proposed to ignore nutrient pollution until the receiving waterbody exhibits a mature eutrophic state, i.e. one characterized by nuisance algae blooms, the proliferation of nuisance aquatic plants, displacement of species, and fish kills.

The redefinition is problematic for a number of reasons. Initially, the cramped redefinition creates significant uncertainties in the enforcement of narrative water quality standards where nutrient pollution is concerned, since the definition requires more significant damage to have become manifest than would application of and enforcement of the four “free-from” standards.

Currently, the minimum criteria applicable to all surface waters provides that

"Surface waters shall not be aesthetically or otherwise degraded by substances that:
(a) Settle to form objectionable deposits;
(b) Float as debris, scum, oil, or other matter to form a nuisance;
(c) Produce objectionable color, odor, taste, or turbidity;
(d) Injure, are chronically or acutely toxic to or produce adverse physiological or behavioral responses in humans, animals, fish, and other aquatic life; [or]
(e) Produce undesirable aquatic life or result in the dominance of nuisance species."

The redefinition of eutrophication creates a more specific water quality standard for nutrient pollution than would otherwise apply, and under applicable canons of statutory construction, would trump the obligations under the more general standards cited above. The result could well be that, where nutrient pollution was involved, complete displacement of native species, rather than the production of undesirable aquatic life or dominance of nuisance species, would become the new standard, and that adverse physiological responses in fish would now be displaced by fish kills as the regulatory standard for nutrient pollution. In short, the proposed redefinition significantly compromises the ability of the Cabinet to take action to prevent the adverse effects it defines in the new definition.

The new definition is also inconsistent with the purposes of KRS Chapter 224 with respect to water quality, which are “to safeguard from pollution the uncontaminated waters of the Commonwealth; to prevent the creation of any new pollution of the waters of the Commonwealth; and to abate any existing pollution.” KRS 224.70-100. Addition of nutrients leading to increased turbidity or low dissolved oxygen capable of causing adverse impacts, even in the absence of manifest adverse effects, must be regulated to prevent the harms.

Another concern is that the new definition places the burden on the agency to gather aquatic data to support any enforcement effort associated with natural community displacement, at a time when resources are strained.

Additionally, significant compliance uncertainties are created by the use of vague terms such as “nuisance” blooms, “proliferation” of nuisance plants, and “severe, sudden” episodes of nutrient enrichment. One is left to question whether there are algae blooms that are non-nuisance, when the presence of nuisance plants becomes a “proliferation” and whether the gradual addition of excessive nutrients causing a tipping point to be reached where a fish kill results, would not be considered eutrophication.

Most fundamentally, however, the definition of eutrophication in terms of an end-state rather than a process, limits the Cabinet’s ability to intervene in a more timely manner to prevent such adverse effects where a trend (for example in DO levels) suggests that eutrophication may be creating a problem.

As noted by the NOAA, eutrophication is a process, not an end state. “Nixon (1995) defined eutrophication as an increase in the rate of supply of organic matter to an ecosystem. Eutrophication also refers to the effects caused by increasing nutrient concentrations (Frithsen 1989) and, as such, is a process, not a trophic state (Nixon 1995). Eutrophication is currently the most widespread water quality problem in the nation and accounts for about 60% of the impaired conditions of rivers in the U.S. (Carpenter et al. 1998).”

In written comments submitted at the public hearing, Hank Graddy suggested the adoption of the definition utilized by the US Geological Survey. The Council believes that the Cabinet should either retain the existing definition and water quality standard, which recognizes that eutrophication is a process of enrichment of nutrient concentrations in waterbodies which may be regulated where is may cause a problem, or adopt numeric standards for the individual nutrients of concern (i.e. nitrogen and phosphorus).

401 KAR 10:031 Section 8

The Cabinet proposes, without explanation and without acknowledging the action in the accompanying explanation of proposed amendments, to remove one of the criteria for automatic inclusion of waters into the outstanding state resource water category; to wit, those waters identified under the Kentucky Nature Preserves Act, KRS 146.410-146.530, which are contained within a formally dedicated nature preserve or are published in the registry of natural areas in accordance with 400 KAR 2:080 and concurred upon by the cabinet.

In lieu of this specific process for inclusion of waters in those natural areas, the agency proposes to add the word “natural” to the permissive designation category.

The existing language should be retained, since it provides for automatic inclusion subject to cabinet concurrence, rather than placing the burden on third parties to nominate the waters for inclusion at the Cabinet’s discretion.

The Council has no comments regarding the other regulatory revisions proposed by the Cabinet. Thank you for your consideration of these comments.

Cordially,

/s/

Tom FitzGerald
Director

Cc: Jim Giattina, EPA Region IV

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