FOR IMMEDIATE RELEASE
Friday, September 10, 2010

EPA Needs to Act to Safeguard

Kentucky’s Waterways and Communities

Kentucky Waterways Alliance, Kentuckians For The Commonwealth, and Sierra Club today filed a lawsuit against the EPA for failure to act on Kentucky’s proposed anti-degradation rules. Adopting such rules is a Clean Water Act requirement designed to protect high quality rivers, lakes, and streams from unnecessary, new, and expanded sources of pollution.

Kentucky’s proposed rules were submitted to EPA for approval in November 2009 as part of an Energy and Environment Cabinet review of the state’s water quality laws. EPA had 60-days to approve or 90-days to deny Kentucky’s proposed rules, but has failed to decide. This continuing delay follows nearly a decade of debate and litigation during which the Kentucky Division of Water (KDOW) has failed to properly protect Kentucky’s rivers, lakes, and streams against new and increased pollution. 

“After years of working with the state toward the highest quality anti-degradation rules possible to best protect Kentucky’s waterways and communities, we are at a turning point,” said Judith Petersen, executive director of Kentucky Waterways Alliance. “It is in the hands of the EPA to make sure Kentucky’s rules are adequately protecting our waterways now and in the future. We need EPA to act today to safeguard communities and stop the continued unjustified pollution of our precious waterways.”

Anti-degradation is a cornerstone of the Clean Water Act’s goal for all of the nation’s waters to support recreation, drinking water supplies, and healthy aquatic communities by reducing and eliminating pollution sources. Permit applications for new and expanded sources of pollution are required to demonstrate that the local community will benefit from the proposed decline in water quality and to perform an analysis that shows the least polluting alternative economically feasible will be employed. The Cabinet is obligated by federal regulations to establish and follow rules that guarantee the pollution is necessary and limited to protect the health of the water and allow for possible future sources of pollution.

The three organizations bringing the suit have encouraged the state to strengthen its anti-degradation standards over the years. This work helped persuade KDOW to designate many of Kentucky’s most pristine rivers, lakes and streams for anti-degradation protections. However, many other waters that are critical for drinking water, recreation and aquatic life are not protected under the latest draft Kentucky rules now on EPA’s desk. Also, these rules have numerous exemptions that allow serious threats to waters that are supposedly protected and much unnecessary new pollution. Forms of pollution partially or totally exempted by the rules include city storm drains and sewers, coal mining and construction, and projects included in the Transportation Cabinet’s six-year road plan.

"EPA recently announced a New Path to Clean Water, which promises increased cooperation to help states identify and protect healthy waters. Unfortunately, KDOW still wants to follow the old path that permitted additional pollution loading into Lake Cumberland without doing a proper anti-degradation review,” said Hank Graddy, Chair, Sierra Club Mississippi River Issue Team and attorney. “Kentucky's latest proposed rules are as inadequate as they were ten years ago - when EPA first disapproved them.  EPA must keep its promise and help the Kentucky Division of Water find the new path."

This road has been traveled before. In September 2008, the Sixth Circuit Court of Appeals struck down portions of Kentucky’s earlier anti-degradation rules for failure to adequately control pollution from these exempted sources. The court further ruled that Kentucky must make certain the combined pollution from the sources exempted from the law will not have more than a minimal effect on the health of the state’s waters. 

Following the court’s decision, environmental groups and industry participated in stakeholder meetings hosted by the Cabinet to address the court’s concerns. Although advised by the groups bringing suit that the proposal was illegal and not protective, the Cabinet proposed rules that were accepted by the legislature and submitted to EPA for final approval. Environmental groups objected to the Cabinet’s proposed rule citing its inadequacy in addressing the court’s ruling and protecting many of the state’s waterways.

“Water is Kentucky’s most important natural resource and the people of Kentucky deserve to have it protected from pollution,” said Doug Doerrfeld, executive committee member, Kentuckians For The Commonwealth. “The Kentucky Environmental Protection Cabinet has failed repeatedly for the past 10 years to enact an anti-degradation policy that adequately protects Kentucky’s streams, rivers, lakes and people. That is why the Sixth Circuit Court of Appeals ordered the EPA to do it. While EPA delays Kentucky’s stream’s get further polluted.”

In the meantime, the state continues to issue new and expanded permits using the inadequate rule which fails to protect Kentucky’s rivers, lakes, and streams. An example of the threat that continues to our waterways is evidenced in Kentucky’s 2010 Integrated Water Quality Report to Congress that shows the drastic decline of streams in the eastern KY coal fields. The report found that only 18 percent of the streams the state monitored in that region were able to support aquatic life. The groups expect the law suit will force the EPA to act on Kentucky’s proposed rule. They are being represented by Kentucky Resources Council and Environmental Law & Policy Center.

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