Senate Bill 89, pending in the House Natural Resources and Energy Committee, would narrow the protections for Kentucky’s surface and ground waters, undoing 75 years of state safeguards for “rivers, streams, creeks, lakes, ponds, impounding reservoirs, springs, wells, marshes, and all other bodies of surface or underground water, natural or artificial.”

Responding to the public outcry against this draconian assault on clean waters, supporters of the bill are claiming that its narrowing of “waters of the Commonwealth” to mirror the U.S. Clean Water Act definition doesn’t remove protections for groundwater or threaten water quality of our rivers, lakes and streams. They say? that all SB Bill 89 intends is to align the Kentucky surface water permit program with the federal Clean Water Act regarding which discharges need to obtain discharge permits.

If the proponents’ claim were true, there would be no need for the bill at all. For existing Kentucky Division of Water regulation, 401 KAR 5:045 Section 4(4), already excludes from the requirement to obtain a pollutant discharge elimination permit “a discharge that is not regulated by the U.S. [Environmental Protection Agency] under the Clean Water Act Section 402, 33 U.S.C. 1342.”

The harmful effects of SB 89 are far greater than what its supporters acknowledge. Narrowing the definition of “waters of the Commonwealth” will do grave damage to Kentucky’s land, water and people, far beyond just syncing state and federal discharge permit requirements. That’s because the definition of “waters of the Commonwealth” is the key to many other protections of surface and groundwaters, as well as waste management programs. Redefining the scope of protections causes harm far beyond the stated intent.

Proponents claim that groundwater will still be protected by other provisions of state and federal law, yet it is in Kentucky Revised Statutes Chapter 224 — the chapter that expressly prohibits water pollution —? where SB 89 changes the definition of waters of the commonwealth and removes the pollution prohibitions for groundwater.?

Other state laws do not clearly prohibit pollution of Kentucky’s groundwater, the source of water for over 1.5 million Kentuckians through 185 public water systems, and over 416,000 from private water wells and springs.?

The Safe Drinking Water Act sets drinking water standards only for public water systems and does not protect groundwater quality for the hundreds of thousands of private domestic and agricultural wells in Kentucky. Ironically, Kentucky regulators would still require water well drillers meet standards for the wells that are drilled but would lose all ability to protect the groundwater that would come through those private wells.??

And while the Safe Drinking Water Act would still require that the public water systems meet standards for the water they sell, their raw water treatment costs would rise as groundwaters lose protection and become susceptible to more contamination.?

?The Underground Injection Control program, which requires wells injecting wastes and wastewaters to seal off “underground sources of drinking water,” doesn’t protect all groundwater, but instead is limited to protecting groundwater usable for drinking rather than other domestic and agricultural uses. Nor does that law regulate all pollution of groundwater, just injections of wastewater through wells.

Wellhead protection areas don’t apply to private wells. Industry is floating? an amendment to SB 89 to re-include public water wells and cave and karst features. This amendment would still leave most private water wells and much of the groundwater resources of Kentucky at risk of contamination.

It is undeniable that SB 89 will increase compliance costs for industries, cities and businesses that hold discharge permits downstream, since “ephemeral streams,” the upper reaches of stream systems that carry rainwater and snowmelt into Kentucky’s rivers and lakes, would lose protection. Contamination of stream headwaters would no longer be limited or prohibited, lowering downstream water quality and raising treatment costs due to tighter pollutant discharge limits for other dischargers.?

It is also undeniable that SB 89 would put the water resources of many farms in Kentucky at greater risk. Pollution affecting off-stream constructed lakes, water storage reservoirs and farm, irrigation, and stock watering ponds would become unregulated, since those are now protected waters of the commonwealth but not protected under federal law. And the thousands of private water wells used by farmers for agricultural purposes would be at risk because the groundwater they use would no longer be a water resource clearly entitled to protection against pollution.??

SB 89 would substantially weaken the regulation of waste disposal and remove protections for groundwater in hazardous substances spills and resulting cleanups.

KY Senate approves bill removing state protections for wetlands, groundwater, small streams

Kentucky law controls and requires cleanup of spills and releases of hazardous substances, pollutants and contaminants into the “environment,” a term defined to include “waters of the commonwealth.”? If the “environment” no longer includes groundwater or headwater streams under Kentucky law, then contamination of either will no longer trigger reporting, action or cleanup.?

Similarly, the location and operation of landfills require meeting environmental performance standards that prohibit discharges to “waters of the commonwealth.” If headwater streams are no longer waters of the commonwealth for the purposes of the solid waste laws, then discharges of leachate, the garbage juice from landfills, would no longer be prohibited and downstream reaches of the streams would become more polluted. If groundwater is no longer a protected water of the commonwealth, then those waste rules that currently protect groundwater from pollution as a water of the commonwealth will no longer be able to rest on that authority. Nor will pollution of groundwater be a violation since that resource would no longer be protected.

If the “environment” no longer includes groundwater as a “water of the commonwealth” under SB 89, the contamination of groundwater from a hazardous release would no longer be a consideration in whether remedial action is needed, or in determining whether a cleanup of the spill or release is protective. Groundwater is a significant pathway of exposure to hazardous pollution, and if it is no longer a protected resource as a “water of the commonwealth,” then preventing or remedying pollution to groundwater is no longer an end goal of Kentucky waste management laws.

Current regulations impose requirements for siting, liners, leachate collection and monitoring, all intended to protect groundwater and other groundwater users from pollution. Removing all groundwater resources from the pollution prohibition by limiting those “waters of the commonwealth” required to be protected, will mean that contamination affecting groundwater will be able to contaminate groundwater without responsibility.

Finally, downstream flooding, which has caused so much loss and tragedy for our brothers and sisters in Eastern Kentucky, would be worsened if the cabinet is prevented from controlling dumping of wastes into and destruction of headwater stream reaches by mining, since sediment loading and increased runoff rates may worsen flooding.

If the intent really is just to sync state discharge permits to the federal permits under the Clean Water Act, and if the General Assembly believes that such a provision should be put into statute even though it is already in the agency regulations, it can narrowly amend KRS 224.16-050, which specifically addresses the issuance of such permits by the cabinet under the Clean Water Act, rather than the “waters of the commonwealth” definition that applies to many other activities beyond surface water pollutant discharge permitting.

SB 89 will not bring “regulatory certainty” to pollution dischargers in Kentucky. By tying protected Kentucky waters to an ever-changing, politically charged federal definition of what surface waters are in or out of protection, each discharge in Kentucky would have to be evaluated on a stream-by-stream, case-by-case basis to determine whether the water meets the federal definition and will be protected in Kentucky. These “jurisdictional determinations” are resource intensive and subject to disputation, resulting in delayed permits and increased litigation and uncertainty for business, industries and cities.??

Kentucky’s rivers and streams all begin with headwaters — the upper reaches of stream systems that flow only part of the year, but which are critical for trapping floodwaters, filtering pollutants and supporting aquatic ecosystems.?

We all live downstream, and Kentuckians deserve clean water for drinking, for irrigation, and recreation, for fishing, and for industries and businesses.??

Despite efforts to muddy the waters on the reach and negative impacts of SB 89, we can clearly see to the bottom of the proposal, and the damage that it will cause to our commonwealth, our economy, our people and our land and water resources is crystal clear. Now is no time for Kentucky’s General Assembly to retreat from our 75-year commitment to safeguarding and protecting all of Kentucky’s waters from pollution.