Senate Bill 89 sounds retreat on 75-year commitment to protecting Kentucky’s waterways

by Tom FitzGerald, Kentucky Lantern
February 18, 2025

“When the well is dry, we know the worth of water.”

Ben Franklin’s observation was never truer than when considering Senate Bill 89, which has passed the Kentucky Senate and could be considered this week by the state House. Ignoring that we all live downstream, the bill would narrow what waters are protected in Kentucky and will lower water quality and raise water treatment costs for downstream communities, farms and industries.

Kentucky’s Division of Water is charged with protecting “waters of the commonwealth” — an intentionally broad term including all “rivers, streams, creeks, lakes, ponds, impounding reservoirs, springs, wells, marshes, and all other bodies of surface or underground water, natural or artificial.”

Kentucky law declares it is state policy to conserve the waters of the commonwealth for public water supplies; fish and wildlife; agricultural, industrial, recreational and other legitimate uses; to safeguard from pollution the uncontaminated waters; to prevent new pollution and abate existing pollution. It has been Kentucky’s stated policy for 75 years to safeguard these waters from pollution, and Kentucky’s businesses, farms and communities have all benefited from efforts to achieve that goal.

SB 89 would narrow protections to only those waters that are defined as “navigable waters” under the federal Clean Water Act, excluding all groundwater, as well as the upper reaches of stream and river systems in Kentucky. Federal law, because it only reaches waters affecting interstate commerce, was never intended to, and does not regulate the full range of discharges that can occur to land or water nor fully protect all waters in Kentucky that are important for drinking water, fish and wildlife, recreation, farming and industries.

If it passes, all protections of groundwater from pollution would be eliminated since groundwater — the source of drinking water for over 1.5 million Kentuckians through 185 public water systems and over 416,000 Kentuckians from wells and springs — is not protected under the federal Clean Water Act. 

Water pollution affecting off-stream constructed lakes, water storage reservoirs, and farm irrigation and stock watering ponds from other properties would be unregulated.

Dumping or discharging pollution into stream headwaters would no longer be limited or prohibited. Called “ephemeral streams,” the upper reaches of stream systems that carry rainwater and snowmelt runoff into Kentucky’s rivers and lakes are an essential part of the river systems, yet are mostly excluded from federal law protections and would lose all protections under state water laws. The Energy and Environment Cabinet would no longer be able to require permits, to impose limits on that water pollution or require sampling or reporting.

Discharging hazardous substances, pollutants, or contaminants into headwater streams would no longer be prohibited, and the cabinet would lack authority to require cleanup of releases of hazardous substances to groundwater or ephemeral streams. And 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.

SB 89 will raise costs for water customers, businesses and industries. Public water systems rely on the ability of the state cabinet to control discharges of pollution into the streams and rivers from which they withdraw water for treatment and sale to customers. Lower water quality due to loss of pollution controls over headwater stream reaches could increase water treatment cost. As downstream water quality declines, more stringent limits are also likely for discharges for downstream permittees. 

Unclear about the impacts? Consider this: A business or industry dumps wastewater into a natural swale, ephemeral channel or constructed ditch that drains into a sinkhole linked to a karst flow system and contaminates the source of a public water system that draws water supply from that karst system. That discharge is currently regulated but would not be under SB 89 because groundwater is no longer protected.

Or this: In the past, brine water from oil and gas operations was often dumped into ephemeral stream channels, where it flowed into the Licking and Kentucky rivers and caused drinking water treatment problems for those communities. Under SB 89, the brine discharges to headwater ephemeral and possibly intermittent streams would not be regulated. And discharges from package sewage treatment plants from subdivisions into ephemeral or intermittent channels leading to larger streams and rivers would no longer be regulated by the state.

Kentucky’s Division of Water must have the ability to ask for a permit or to impose compliance obligations through enforcement actions for these and other activities causing pollution to any Kentucky waters. We all live downstream, and Kentuckians deserve clean water for drinking, irrigation,  recreation, fishing, and for industries and businesses. Now is not the time for Kentucky’s General Assembly to retreat from our 75-year commitment to safeguarding and protecting Kentucky’s waters from pollution, when we still have so much to do to reach the clean water goals set so many years ago.

Kentucky Lantern is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Kentucky Lantern maintains editorial independence. Contact Editor Jamie Lucke for questions: info@kentuckylantern.com.

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