KRS 224.16-070: Water quality certifications for surface coal mining operations for

applicants eligible for Nationwide Permit 21 or 26.

(1) This section shall apply to the cabinet's issuance, waiver, or denial of water quality

certifications for surface coal mining operations, as defined in KRS 350.010, if:

(a) The applicant for the water quality certification has applied to the cabinet for a

permit in accordance with KRS Chapter 350 and the administrative

regulations promulgated pursuant thereto;

(b) The applicant for the water quality certification is eligible for Nationwide

Permit 21 or 26 issued in accordance with 33 U.S.C. sec. 1344 and 33 C.F.R.

Part 330, Appendix A;

(c) The applicant's surface coal mining operation will not impact waters of the

Commonwealth d esignated by the cabinet in its water quality standards as

outstanding state or national resource waters or as cold water aquatic habitat;

and

(d) The applicant's surface coal mining operation will not impact waters of the

Commonwealth which are wetlands one (1) acre or more in size.

(2) If the watershed above the toe of the farthest downstream permanent structure

authorized pursuant to Nationwide Permit 21 or 26 is less than four hundred eighty

(480) acres for the surface coal mining operation meeting the criteria of subsection

(1) of this section, the cabinet shall issue a water quality certification containing

only the standard conditions set out in paragraphs (a) to (e) of this subsection.

(a) All earthwork operations shall be carried out so that sedimen t runoff and soil

erosion to waters of the Commonwealth are controlled and minimized. Best

management practices for water pollution control shall be used by the surface

coal mining operation.

(b) Heavy equipment, such as bulldozers, backhoes, and draglines , shall not be

used or operated within waters of the Commonwealth outside of the

boundaries of a permanent structure, unless that use cannot be avoided. If use

of heavy equipment within waters of the Commonwealth outside the

boundaries of a permanent struc ture is unavoidable, then the work shall be

performed so as to minimize resuspension of sediments and disturbance to

substrates, banks, or riparian vegetation.

(c) Measures shall be taken to prevent and to control spills of fuels, lubricants,

and other materials from entering waters of the Commonwealth.

(d) Any fill or riprap shall be of a composition that shall not cause violations of

water quality standards by adversely affecting the biological, chemical, or

physical properties of waters of the Commonweal th. If riprap is used, it shall

be of a weight and size that bank stress or slump conditions shall not occur.

(e) Removal of riparian vegetation outside the boundaries of a permanent

structure shall be minimized.

(3) (a) If the watershed above the toe of t he farthest downstream permanent structure

authorized pursuant to Nationwide Permit 21 or 26 is greater than or equal to

four hundred eighty (480) acres for the surface coal mining operation meeting

the criteria of subsection (1) of this section, the cabin et may require a water

quality certification containing conditions in addition to those standard

conditions identified in subsection (2) of this section for the purpose of

protecting water quality.

(b) The water quality certification may requir e mitigation at a maximum ratio of

one (1) acre of mitigation area for every one (1) acre of permanent loss of

waters of the Commonwealth on the permitted area, except for waters of the

Commonwealth isolated as a result of the permanent structure.

(c) For waters of the Commonwealth isolated as a result of a permanent structure,

the maximum mitigation ratio shall be five-tenths (0.5) acre of mitigation area

for every one (1) acre of those isolated waters.

(d) The cabinet shall accept mitigation on the permit ted area, mitigation off the

permitted area, mitigation banking of waters of the Commonwealth, or any

combination thereof, or any other mitigation measure acceptable to the

cabinet.

(e) Upon completion of all mitigation work required by the water quality

certification required by this subsection, the surface coal mining operation

shall obtain a certification from a registered professional engineer that all

mitigation work has been completed in accordance with the conditions of the

water quality certificatio n. The surface coal mining operation shall promptly

submit the professional engineer's certification to the cabinet. The cabinet

shall promptly review the certification and provide to the surface coal mining

operation written notice that all mitigation wor k has been successfully

completed, or that further mitigation work is necessary to meet the conditions

imposed by the water quality certification.

(4) The cabinet shall not require a water quality certification for a road crossing on the

permitted area imp acting less than two hundred (200) linear feet of waters of the

Commonwealth.

(5) The cabinet shall confer with representatives of the surface coal mining industry and

representatives of environmental organizations with an interest in water quality in

developing a manual of approvable options for mitigation on permitted areas,

mitigation off permitted areas, mitigation involving banking of waters of the

Commonwealth, and removal of temporary sediment structures at surface coal

mining operations as a mitigation option.

(6) (a) The cabinet shall have ten (10) working days to make a determination that an

application for a water quality certification is administratively complete or to

notify the applicant of specific deficiencies.

(b) The cabinet shall have fort y (40) working days to review an administratively

complete application for a water quality certification, to issue or waive that

certification, or to deny that certification with specific deficiencies identified,

and to notify the applicant of the final de termination. If the cabinet has not

notified the applicant of its final determination within forty (40) days of

receiving an administratively complete application, the water quality

certification shall be deemed waived.

(7) Nothing in this section shall be construed as abrogating the cabinet's ability to

require water quality certifications for surface coal mining operations that do not

meet the criteria of subsection (1) of this section.