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AN ACT relating to environmental permitting. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF SUBCHAPTER 16 OF KRS CHAPTER 3
224 IS CREATED TO READ AS FOLLOWS: 4
(1) When issuing permits under Section 3 of this Act for discharges into waters 5
designated as outstanding state resource waters due to the water’s support of 6
federally threatened and endangered species of aquatic organisms, the cabinet 7
shall, to the extent allowable under this chapter and the federal Water Pollution 8
Control Act, 33 U.S.C. sec. 1251 et seq.: 9
(a) Presume that water quality will be maintained and protected if the applicant 10
complies with the technology-based effluent limitations for the point source 11
category for the industry in which the permit applicant operates or with any 12
species-specific protection measures imposed on the applicant’s operation 13
by any other state or federal agency in any other permit, approval, or review 14
applicable to the operation for which the permit under Section 3 of this Act 15
is sought; 16
(b) In determining whether lowering of water quality or habitat modification 17
will have an adverse effect on the threatened or endangered species that the 18
water supports, give substantial weight to any evidence submitted by the 19
permit applicant indicating that discharges from similar operations have not 20
caused a material decrease in the overall number of the same or similar 21
threatened or endangered species of aquatic organisms; 22
(c) Not impose any conditions that are more stringent than those required by 23
the United States Fish and Wildlife Service to protect any particular 24
threatened or endangered species of aquatic organism or aquatic habitat 25
with respect to the discharge or operation; and 26
(d) In the absence of any restrictions, conditions, or limitations imposed on the 27 UNOFFICIAL COPY 23 RS SB 226/VO
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discharge by the United States Fish and Wildlife Service, presume that 1
compliance with numeric water quality standards applicable to the 2
discharge shall constitute compliance with narrative water quality standards 3
applicable to outstanding state resource waters that support federally 4
recognized threatened or endangered species. 5
(2) The cabinet shall clearly document its compliance with the requirements of 6
subsection (1) of this section in the fact sheet for the permit. Notwithstanding any 7
provision of law to the contrary, if the cabinet fails to clearly and adequately 8
document its compliance with the requirements of subsection (1) of this section, 9
any term, limitation, condition, or other requirement imposed on the permit based 10
on a narrative water quality standard for outstanding state resource waters shall 11
be automatically stayed upon the filing of a petition for administrative hearing 12
related to the permit by the applicant. 13
Section 2. KRS 224.10-225 is amended to read as follows: 14
(1) The secretary of the Energy and Environment Cabinet shall facilitate the permitting 15
of: 16
(a) Coal-fired electric generation plants or industrial energy facilities in the 17
Commonwealth; and 18
(b) Upon request of the applicant, surface coal mining and reclamation 19
operations in the Commonwealth; 20
by developing procedures for one (1) stop shopping for environmental permits. 21
(2) Upon request by an applicant for environmental permits for an industrial energy 22
facility or a surface coal mining and reclamation operation, the secretary, in 23
consultation with the applicant, shall establish specific time periods for actions to 24
be taken in the consideration of its permit applications. The time periods established 25
shall not exceed those adopted by administrative regulations promulgated pursuant 26
to KRS 224.10-220. Notwithstanding KRS 224.10-420(2), failure by the cabinet to 27 UNOFFICIAL COPY 23 RS SB 226/VO
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adhere to the time periods established pursuant to this section or established by 1
administrative regulations promulgated pursuant to KRS 224.10-220 shall 2
constitute the making of a final determination of the cabinet, and the applicant, 3
at its election, may: 4
(a) Initiate an action for mandamus, declaratory judgment, or other specific 5
relief in the Circuit Court for the county in which the surface coal mining 6
and reclamation operation is located; or 7
(b) Initiate an administrative hearing under KRS 224.10-420(2). 8
(3) As used in this section, "surface coal mining and reclamation operations" has 9
the same meaning as in KRS 350.010. 10
Section 3. KRS 224.16-050 is amended to read as follows: 11
(1) The cabinet may issue federal permits pursuant to 33 U.S.C. sec. 1342(b) of the 12
federal Water Pollution Control Act, [(]33 U.S.C. sec.[secs.] 1251 et seq.,[)] subject 13
to the conditions imposed in 33 U.S.C. secs. 1342(b) and 1342(d). The cabinet may 14
issue federal permits pursuant to 33 U.S.C. sec. 1344(e) and (g) of the federal Water 15
Pollution Control Act, 33 U.S.C. sec.[secs.] 1251 et seq., subject to the conditions 16
imposed in 33 U.S.C. sec. 1344(h), (i), and (j). Any exemptions granted in the 17
issuance of NPDES permits shall be pursuant to 33 U.S.C. secs. 1311, 1312, and 18
1326(a). The cabinet shall report to the standing committees of jurisdiction over 19
environmental protection, and appropriations and revenue, no later than January 1, 20
2006, on the costs, personnel requirements, and any statutory or regulatory changes 21
needed to support state assumption of the permitting program under 33 U.S.C. sec. 22
1344(e) and (g), and the anticipated benefits in permit streamlining and 23
environmental quality from state administration of the program. 24
(2) (a) The cabinet shall make certification determinations[may certify] pursuant to 25
33 U.S.C. sec. 1341 as to whether[that] applicants for a federal permit for the 26
construction or operation of facilities which may result in a discharge into the 27 UNOFFICIAL COPY 23 RS SB 226/VO
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waters of the Commonwealth will comply with the applicable provisions of 1
the federal Water Pollution Control Act, [(]33 U.S.C. sec.[secs.] 1251 et 2
seq.[).] 3
(b) Within thirty (30) calendar days of receipt of an application for certification 4
under paragraph (a) of this subsection, the cabinet shall notify the applicant 5
in writing that the application is complete or that the cabinet requires 6
additional information to process the application. If the cabinet determines 7
that additional information is necessary to process the application, the 8
notice provided pursuant to this paragraph shall clearly set forth the 9
necessary additional information, which the applicant shall provide within 10
thirty (30) calendar days of receiving the notice of incompleteness. 11
(c) Unless a longer period of time is requested by the applicant, the cabinet 12
shall make a final determination on whether to issue the certification or 13
deny the application within sixty (60) calendar days of notifying the 14
applicant that the application is complete pursuant to paragraph (b) of this 15
subsection. 16
(d) If the cabinet does not make a final determination within sixty (60) calendar 17
days of a notification of completeness in accordance with paragraph (c) of 18
this subsection, the cabinet shall be considered to have waived certification 19
requirements by the Commonwealth, unless the applicant has voluntarily 20
agreed in writing to a longer review period not to exceed one (1) year from 21
the cabinet's receipt of the initial application. 22
(3) The certification provided under subsection (2) of this section shall be limited in 23
scope to water quality impacts from the discharge only and shall not include 24
other limitations or constitute a review of the proposed activity as a whole[The 25
cabinet shall not undertake either of the actions authorized in subsections (1) or (2) 26
of this section unless the Governor of the Commonwealth has determined that such 27 UNOFFICIAL COPY 23 RS SB 226/VO
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activity will be in the best interests of the environment and the people of the 1
Commonwealth]. 2
(4) The cabinet shall not impose under any permit issued pursuant to this section any 3
effluent limitation, monitoring requirement, or other condition which is more 4
stringent than the effluent limitation, monitoring requirement, or other condition 5
which would have been applicable under federal regulation if the permit were 6
issued by the federal government. The cabinet shall not postpone or delay the 7
review of, or condition, delay, or refuse the issuance of, any permit under 33 8
U.S.C. sec. 1342(b) of the Federal Water Pollution Control Act on the applicant's 9
need for or receipt of any other federal, state, or local permit, certification, 10
license, authorization, or other approval. 11
(5) Nonprofit organizations which have been qualified under Section 501(c)(3) of the 12
Internal Revenue Code and which operate their own treatment facilities and which 13
are designated for capacities less than ten thousand (10,000) gallons per day shall 14
be charged a fee no greater than fifty dollars ($50) by the cabinet to process a 15
construction permit, nor a fee greater than twenty dollars ($20) per year for an 16
operating permit for one (1) facility. These fees shall in no case be higher than the 17
fees charged by the cabinet to process permit applications for comparable privately 18
owned facilities. This subsection shall not apply to any school or waterworks 19
owned by a water district, water association, or municipality and established 20
pursuant to KRS Chapters 74 or 106. 21
(6) The following activities do not require a permit issued under 33 U.S.C. sec. 1344. 22
The discharge of dredged or fill material: 23
(a) From normal farming, silviculture, and ranching activities such as plowing, 24
seeding, cultivating, minor draining, harvesting for the production of food, 25
fiber, and forest products, or upland soil and water conservation practices; 26
(b) For the purpose of maintenance, including emergency reconstruction of 27 UNOFFICIAL COPY 23 RS SB 226/VO
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recently damaged parts of currently serviceable structures such as dikes, 1
dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or 2
approaches, and transportation structures; 3
(c) For the purpose of construction or maintenance of farm or stock ponds, 4
irrigation ditches, or the maintenance of drainage ditches; 5
(d) For the purpose of construction of temporary sedimentation basins on a 6
construction site which does not include placement of fill material into the 7
navigable waters; or 8
(e) For the purpose of construction or maintenance of farm roads, forest roads, or 9
temporary roads for moving mining equipment, where the roads are 10
constructed and maintained, in accordance with best management practices, to 11
ensure that flow and circulation patterns and chemical and biological 12
characteristics of the navigable waters are not impaired, that the reach of the 13
navigable waters is not reduced, and that any adverse effect on the aquatic 14
environment will be minimized. 15
(7) Prior to assuming delegated authority from the United States Environmental 16
Protection Agency to administer 33 U.S.C. sec. 1344(e) and (g), the cabinet shall 17
enter into a memorandum of agreement with the United States Department of 18
Agriculture (USDA) regarding wetlands delineation on agricultural lands or lands 19
owned or operated by a USDA program participant. The cabinet shall give the same 20
deference to wetlands delineations made by USDA as would have been given by a 21
federal agency administering 33 U.S.C. sec. 1344(e) and (g). 22
(8) The cabinet may establish by regulation a fee for processing permit applications 23
under 33 U.S.C. sec. 1344. 24