# 401 KAR 10:030: 401 KAR 10:030. Antidegradation policy implementation methodology

> Kentucky · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/STATE_KY_KAR_T401_C010_R030

## Section

- **Citation:** 401 KAR 10:030
- **Heading:** 401 KAR 10:030. Antidegradation policy implementation methodology
- **Jurisdiction:** Kentucky
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Kentucky Administrative Regulations / Title 401 (Energy and Environment Cabinet - Department for Environmental Protection) / Chapter 010 / 401 KAR 10:030

## Text

Section 1. Categorization and Implementation. The antidegradation procedures established in this administrative regulation shall not preempt the power or authority of a local government to provide by ordinance for a higher level of protection through antidegradation implementation for a discharger located within that local government's jurisdiction to a surface water of the commonwealth. The procedures established in this section shall govern implementation of the antidegradation policy of 401 KAR 10:029, Section 1, for a point source discharge. Surface waters shall be placed into one (1) of four (4) categories listed in this section and each category shall have a corresponding implementation procedure. (1) Outstanding national resource water. Surface waters of the commonwealth categorized as outstanding national resource waters are listed in Table 1 of this subsection. (a) Categorization criteria. A surface water shall be categorized as an outstanding national resource water if: 1. The surface water meets, at a minimum, the requirements for an outstanding state resource water as provided in 401 KAR 10:031, Section 8; and 2. The surface water demonstrates national ecological or recreational significance. (b) Implementation procedure. 1. Water quality shall be maintained and protected in an outstanding national resource water. 2. A new discharger or expanded discharge that may result in permanent or long-term changes in water quality shall be prohibited. 3. The cabinet may approve temporary or short-term changes in water quality if the changes to the outstanding national resource water do not have a demonstrable impact on the ability of the water to support the designated uses. (2) Exceptional water. Surface waters of the commonwealth categorized as an exceptional water are listed in Table 2 of this subsection. (a) Categorization criteria. A surface water shall be categorized as an exceptional water if the surface water: 1
f the changes to the outstanding national resource water do not have a demonstrable impact on the ability of the water to support the designated uses. (2) Exceptional water. Surface waters of the commonwealth categorized as an exceptional water are listed in Table 2 of this subsection. (a) Categorization criteria. A surface water shall be categorized as an exceptional water if the surface water: 1. Is designated as a Kentucky Wild River and is not categorized as an outstanding national resource water; 2. Is designated as an outstanding state resource water as established in 401 KAR 10:031, Section 8(1)(a)1. and 2. and Section 8(1)(b); 3. Contains a: a. Fish community that is rated "excellent" by the use of the Index of Biotic Integrity included in Development and Application of the Kentucky Index of Biotic Integrity (KIBI), 2003; or b. Macroinvertebrate community that is rated "excellent" by the Macroinvertebrate Bioassessment Index included in "The Kentucky Macroinvertebrate Bioassessment Index," 2003; or 4. Is in the cabinet's reference reach network. (b) Implementation procedure. The implementation procedure for exceptional water shall be as established in subsection (3)(b) of this section. (3) High quality water. (a) Categorization criteria. 1. A surface water shall be categorized as high quality water if the surface water is not listed as an outstanding national resource water or an exceptional water in Table 1 or 2 of this section and if the surface water does not meet the criteria for impaired water as established in subsection (4)(a) of this section. 2. A surface water shall be categorized as a high quality water if the surface water is listed as an outstanding state resource water in 401 KAR 10:026 and is not listed as an outstanding national resource water in Table 1 or an exceptional water in Table 2 of this section. (b) Implementation procedure. Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected
ed as a high quality water if the surface water is listed as an outstanding state resource water in 401 KAR 10:026 and is not listed as an outstanding national resource water in Table 1 or an exceptional water in Table 2 of this section. (b) Implementation procedure. Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected. A KPDES permit application for a new or expanded discharge into a high quality or exceptional water shall be subject to the provisions of this paragraph, except: 1. Â a. The renewal of a KPDES permit that does not authorize pollutant loading to the receiving stream in excess of that previously authorized; b. An increase in pollutant loading within the limits previously approved by the KPDES permit; or c. A new or expanded discharge that the applicant demonstrates: (i) Shall not consume more than ten (10) percent of the available assimilative capacity of the receiving stream outside of a designated mixing zone or zone of initial dilution for each new or increased pollutant in the discharge; and (ii) The cumulative impact of this category of discharges shall not consume more than ten (10) percent of the available assimilative capacity of the receiving stream outside of a designated mixing zone or zone of initial dilution. 2. The activities identified in clauses a. through d. of this subparagraph shall constitute compliance with the alternatives and socioeconomic analysis requirements if addressed in the manner established in this subparagraph rather than as established in subparagraph 1.c. of this paragraph, unless the permittee chooses to satisfy applicable antidegradation requirements pursuant to subparagraph 3. of this paragraph. a. The cabinet may, upon receipt of a notice of intent to be covered under a general permit, require additional analyses or other information if necessary to comply with antidegradation requirements
ragraph rather than as established in subparagraph 1.c. of this paragraph, unless the permittee chooses to satisfy applicable antidegradation requirements pursuant to subparagraph 3. of this paragraph. a. The cabinet may, upon receipt of a notice of intent to be covered under a general permit, require additional analyses or other information if necessary to comply with antidegradation requirements. A general permit issued pursuant to 401 KAR 5:050 through 5:080 shall be compliant with the alternatives and socioeconomic analysis requirements if: (i) The activity permitted by the general permit may result in a lowering of water quality, the cabinet shall describe in the Fact Sheet how the general permit complies with the alternatives analysis, and socioeconomic demonstration requirements of subparagraph 1.c. of this paragraph upon each general permit issuance; (ii) The requirements and conditions in a general permit will prevent a lowering of water quality, the cabinet shall describe in the Fact Sheet how the general permit complies with the antidegradation policy established in 401 KAR 10:029, Section 1; and (iii) The cabinet notifies the public of an activity granted coverage under a general permit on the cabinet's Web page, which shall include the facility name, location, and receiving water. b. The approval of a POTW's regional facility plan pursuant to 401 KAR 5:006 shall constitute compliance with the alternatives analysis and socioeconomic demonstration for a regional facility. c. An antidegradation review shall not be required for maintenance of an existing highway facility
eral permit on the cabinet's Web page, which shall include the facility name, location, and receiving water. b. The approval of a POTW's regional facility plan pursuant to 401 KAR 5:006 shall constitute compliance with the alternatives analysis and socioeconomic demonstration for a regional facility. c. An antidegradation review shall not be required for maintenance of an existing highway facility. A new or expanded discharge associated with a project identified in the Kentucky Transportation Cabinet's six (6) year road plan as established in KRS 176.430 shall satisfy the: (i) Alternatives analysis for lowering water quality requirement if an alternatives analysis for the project has been submitted; and (ii) Socioeconomic demonstration requirement if the project has been approved by the General Assembly and included in the Kentucky Transportation Cabinet's six (6) year road plan and evaluated pursuant to the provisions of KRS 176.430(4)(i). d. An individual MS4 permit issued pursuant to 401 KAR 5:050 through 5:080 shall be compliant with the alternatives and socioeconomic analysis requirements if the: (i) Activity permitted by the MS4 permit may result in a lowering of water quality, the cabinet shall describe in the Fact Sheet how the MS4 permit complies with the alternatives analysis and socioeconomic demonstration requirements of subparagraph 3.a. and b. of this paragraph; and (ii) Requirements and conditions in the MS4 permit will prevent a lowering of water quality, the cabinet shall describe in the Fact Sheet how the MS4 permit complies with the antidegradation policy established in 401 KAR 10:029, Section 1. 3. An application for a KPDES permit subject to this paragraph shall contain information demonstrating that the lowering of water quality is necessary to accommodate important economic or social development in the area in which the water is located. a
, the cabinet shall describe in the Fact Sheet how the MS4 permit complies with the antidegradation policy established in 401 KAR 10:029, Section 1. 3. An application for a KPDES permit subject to this paragraph shall contain information demonstrating that the lowering of water quality is necessary to accommodate important economic or social development in the area in which the water is located. a. The socioeconomic demonstration shall consider: (i) The boundaries of the affected community; (ii) The potential effect on employment, including a comparison of local unemployment rates and state and national unemployment rates; (iii) The potential effect on median household income levels, including a comparison of the present median household income level, projected median household income level, and number of households affected in the defined community; (iv) The potential effect on tax revenues, including current tax revenues in the affected community compared to projected increase in tax revenues generated by the permitted project; (v) The potential effect of the facility on the environment and public health; and (vi) Other potential economic or social effect to the community that the applicant includes in the application. b. The alternatives analysis shall consider: (i) Pollution prevention measures, such as changes in plant processes, source reductions, or substitution with less toxic substances; (ii) The use of best management practices to minimize impacts; (iii) Recycle or reuse of wastewater, waste by-products, or production materials and fluids; (iv) Application of water conservation methods; (v) Alternative or enhanced treatment technology; (vi) Improved operation and maintenance of existing treatment systems; (vii) Seasonal or controlled discharge options; (viii) Land application or infiltration to capture pollutants and reduce surface runoff, on-site treatment, or alternative discharge locations; and (ix) Discharge to other treatment facilities. c
tion of water conservation methods; (v) Alternative or enhanced treatment technology; (vi) Improved operation and maintenance of existing treatment systems; (vii) Seasonal or controlled discharge options; (viii) Land application or infiltration to capture pollutants and reduce surface runoff, on-site treatment, or alternative discharge locations; and (ix) Discharge to other treatment facilities. c. Information required pursuant to this subparagraph shall be submitted on the Socioeconomic Demonstration and Alternatives Analysis form. 4. A permit applicant who has failed to demonstrate the necessity and social or economic development importance for lowering water quality shall not receive a permit unless: a. The applicant demonstrates, through a revised submission, the necessity for lowering revised water quality in accordance with subparagraph 3. of this paragraph; or b. The applicant demonstrates that the discharge can meet the requirements established in subparagraph 1.c. of this paragraph. 5. A permit applicant who demonstrates the necessity and social or economic development importance for lowering water quality shall meet the requirements of the KPDES program, 401 KAR 5:050 through 5:080. 6. The cabinet's determination shall be documented in the permit Fact Sheet and included in the administrative record for the permit or action. (4) Impaired water. (a) Categorization criteria. A surface water categorized as impaired for applicable designated uses shall be a water identified pursuant to 33 U.S.C. 1315(b). 1. A surface water assessed by the cabinet as not fully supporting an applicable designated use shall be categorized as impaired for the purposes of this administrative regulation, except as established in subparagraph 2. of this paragraph. 2. A surface water shall not be categorized as impaired water for the purposes of this administrative regulation if the surface water is listed: a. As an outstanding state resource water in 401 KAR 10:026; b. As an exceptional water in 401 KAR 10:030; or c
hall be categorized as impaired for the purposes of this administrative regulation, except as established in subparagraph 2. of this paragraph. 2. A surface water shall not be categorized as impaired water for the purposes of this administrative regulation if the surface water is listed: a. As an outstanding state resource water in 401 KAR 10:026; b. As an exceptional water in 401 KAR 10:030; or c. Only as mercury or methylmercury impaired for fish consumption. (b) Implementation procedure. 1. All existing uses shall be protected and the level of water quality necessary to protect those existing uses shall be assured in impaired water. 2. The process to allow a discharge into an impaired water and to assure protection of the water shall be regulated by the requirements in the Kentucky Pollution Discharge Elimination System Program, 401 KAR 5:050 through 5:080. Section 2. Procedure for Recategorizing Water. This section shall apply to the recategorization of surface water to outstanding national resource water and exceptional water. The redesignation of water to outstanding state resource water shall be governed by the procedures in 401 KAR 10:026. (1) The cabinet may propose to recategorize certain water to outstanding national resource water and exceptional water if the water meets the criteria set forth in Section 1(1)(a) or (2)(a) of this administrative regulation. (a) If the cabinet proposes to recategorize these waters, it shall provide notice and an opportunity for public hearing. (b) The cabinet shall provide the documentation requirements of this section for those surface waters it proposes to recategorize. (2) A person may request recategorization of a surface water to an outstanding national resource water or exceptional water by filing a petition with the cabinet. (a) The petition shall include the name and address of the petitioner and the information and documentation necessary to recategorize the particular water as required by subsection (4) of this section
waters it proposes to recategorize. (2) A person may request recategorization of a surface water to an outstanding national resource water or exceptional water by filing a petition with the cabinet. (a) The petition shall include the name and address of the petitioner and the information and documentation necessary to recategorize the particular water as required by subsection (4) of this section. (b) The petitioner shall have the burden of proof that the recategorization is appropriate. (c) The cabinet shall provide notice of the petition and an opportunity for a public hearing. (d) The cabinet shall review the petition, supporting documentation, and any comments received from the public to determine if the proposed water qualifies for recategorization. (e) The cabinet shall document the determination to grant or deny recategorization as a result of a petition, and shall provide a copy of the decision to the petitioner and other interested parties. (3) If a water is to be recategorized, the cabinet shall publish notice of the recategorization. (a) A permit issued after the date of publication shall be issued with limitations based on the new category. (b) When the cabinet reviews its water quality standards pursuant to the provisions of Section 303 of the Clean Water Act, 33 U.S.C. 1313, the cabinet shall propose to have all recategorized water promulgated as an amendment to this administrative regulation. (4) The following information, documentation, and data shall support a petition for recategorization: (a) A petition for outstanding national resource water shall include: 1. A USGS 7.5 minute topographic map or its equivalent showing those surface waters to be recategorized including a description consisting of a river mile index with any existing and proposed discharge points; 2. Existing uses and water quality data for the surface water for which the recategorization is proposed. If adequate data are unavailable, additional studies shall be required by the cabinet; 3
USGS 7.5 minute topographic map or its equivalent showing those surface waters to be recategorized including a description consisting of a river mile index with any existing and proposed discharge points; 2. Existing uses and water quality data for the surface water for which the recategorization is proposed. If adequate data are unavailable, additional studies shall be required by the cabinet; 3. Descriptions of general land uses and specific land uses adjacent to the surface water for which the recategorization is proposed; 4. The existing and designated uses of the water upstream and downstream of the proposed recategorized water; 5. General physical characteristics of the surface water including width, depth, bottom composition, and slope; 6. The frequency of occasions when there is no natural flow in the surface water and the 7Q 10 and harmonic mean flow values for the surface water and adjacent surface waters; 7. An assessment of the existing and potential aquatic life habitat in the surface water under consideration and the adjacent upstream surface waters. The existing aquatic life shall be documented including the occurrence of individuals or populations, indices of diversity and well-being, and abundance of species of any unique native biota; 8. A documented rationale as to why the water qualify for the recategorization; and 9. The rationale used to support the national significance of the water. (b) A petition for exceptional water shall include: 1. A United States Geological Survey 7.5 minute topographic map or its equivalent showing the surface water to be recategorized including a description consisting of a river mile index with existing and proposed discharge points; 2. Descriptions of general land uses, including: a. Mining; b. Agriculture; c. Recreation; d. Low, medium, and high density residential, commercial, or industrial uses; and e. Specific land uses adjacent to the surface water for which the recategorization is proposed; 3
e water to be recategorized including a description consisting of a river mile index with existing and proposed discharge points; 2. Descriptions of general land uses, including: a. Mining; b. Agriculture; c. Recreation; d. Low, medium, and high density residential, commercial, or industrial uses; and e. Specific land uses adjacent to the surface water for which the recategorization is proposed; 3. The frequency of occasions when there is no natural flow in the surface water and the 7Q 10 and annual mean flow values for the surface water; and 4. Fish or benthic macroinvertebrate collection data and an Index of Biotic Integrity or Macroinvertebrate Bioassessment Index calculation from a waterbody if criteria specified in Section 1(2)(a)3 of this administrative regulation are utilized. Section 3. Incorporation by Reference. (1) The following material is incorporated by reference: (a) "Development and Application of the Kentucky Index of Biotic Integrity (KIBI)", 2003, Kentucky Division of Water, Environmental and Public Protection Cabinet; (b) "The Kentucky Macroinvertebrate Bioassessment Index", 2003, Kentucky Division of Water, Environmental and Public Protection Cabinet; and (c) "Socioeconomic Demonstration and Alternative Analysis", KPDES Form SDAA, DEP Form 7032, May 2019. (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Division of Water, 300 Sower Boulevard, Frankfort, Kentucky 40601, Monday through Friday, 8 a.m. to 4:30 p.m. (a) The Socioeconomic Demonstration and Alternative Analysis, KPDES Form SDAA, DEP Form 7032, May 2019, is also available on the division's Web site at https://eec.ky.gov/Environmental-Protection/Water/PermitCert/KPDES/Pages/default.aspx. (b) "Development and Application of the Kentucky Index of Biotic Integrity" and "Kentucky Macroinvertebrate Bioassessment Index" is also available on the division's Web site at https://eec.ky.gov/Environmental-Protection/Water/QA/Pages/default.aspx.

## Nearby sections

- [401 KAR 10:001 401 KAR 10:001. Definitions for 401 KAR Chapter 10](https://www.frixlaw.com/law-library/statutes/STATE_KY_KAR_T401_C010_R001.md)
- [401 KAR 10:026 401 KAR 10:026. Designation of uses of surface waters](https://www.frixlaw.com/law-library/statutes/STATE_KY_KAR_T401_C010_R026.md)
- [401 KAR 10:029 401 KAR 10:029. General provisions](https://www.frixlaw.com/law-library/statutes/STATE_KY_KAR_T401_C010_R029.md)
- [401 KAR 10:030 401 KAR 10:030. Antidegradation policy implementation methodology](https://www.frixlaw.com/law-library/statutes/STATE_KY_KAR_T401_C010_R030.md)
- [401 KAR 10:031 401 KAR 10:031. Surface water standards](https://www.frixlaw.com/law-library/statutes/STATE_KY_KAR_T401_C010_R031.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/STATE_KY_KAR_T401_C010_R030. Check the current official text before relying on it. Not legal advice.