Bill weakening Kentucky groundwater and wetland protection passes, poised to become law
Sen. Scott Madon, R-Pineville, who sponsored Senate Bill 89, said the legislation would ease the burden of environmental regulations and permitting for coal mines and other industries and align with federal water definitions — which were weakened in 2023 by the U.S. Supreme Court.
Under the state's existing definition of "waters of the commonwealth," the Kentucky Energy and Environment Cabinet has broad jurisdiction to regulate and protect groundwater, springs, marshes and other important water resources. Madon's bill would instead defer to the less protective federal water definitions, narrowing state regulators' jurisdiction over Kentucky waters.
Lawmakers said they were flooded with thousands of calls and emails about the bill from constituents, many concerned about threats to drinking water, particularly in communities dependent on wells. Rep. Jim Gooch, R-Providence, said he "shared some of those concerns," and amended the bill in the House to restore some specific protections for sinkholes, wellhead protection areas and some springs.
But Gooch's revisions still do not explicitly preserve the state's protections on groundwater and other key water resources around the commonwealth, according to regulatory officials.
In a letter, cabinet Secretary Rebecca Goodman told lawmakers the amended bill "does not address groundwater aquifers and would provide no protection for the state's residents who have domestic use wells, including Kentucky's farmers, and those who rely on water systems whose source water comes from groundwater."
Proponents framed the legislation as a means of curbing regulatory overreach and streamlining permitting. Supporters included prominent voices of industry, including the Kentucky Coal Association, the Home Builders Association of Kentucky, the American Petroleum Institute, the Kentucky Farm Bureau and the Kentucky Association of Manufacturers, according to Gooch.
The bill's consideration came after some Republicans scrutinized the state's permitting of coal mining operations, The Courier Journal previously reported, based on emails between senators and cabinet officials last year.
The cabinet took a remarkably firm stance against SB 89, and, in a statement, agreed with environmental advocates in calling the legislation "an irresponsible, dangerous and deliberate choice to cater to a few at the expense of many" — a perspective Gooch dismissed as "hyperbole" during committee.
The Republican-led bill passed mostly along party lines, and now heads to the desk of Gov. Andy Beshear, who may veto it. But the Republican supermajority in the General Assembly would still have time to override his veto and pass the legislation into law, and its emergency clause would allow it to go into effect immediately.
Under the amended bill passed by the General Assembly, Kentucky's Energy and Environment Cabinet said the following water resources would have inadequate protections:
Groundwater aquifers;
Lakes and reservoirs, including those used for drinking water and recreation, if they lack a "continuous surface connection" with protected waters
Some springs, such as those not directly used as domestic drinking water sources.
SB 89's passage would make Kentucky the only state "to cede its authority to define its waters to the federal government and jeopardize state regulatory primacy," the cabinet said. "This is not where Kentucky needs to be the exception."
Impacts to groundwater were the chief concern expressed by the agency and environmental advocates. About 1.5 million Kentuckians rely on drinking water from private wells or public water systems drawing from groundwater, and opponents of the bill said water quality would be at risk under the narrowed protections.
Groundwater and smaller, unassuming streams ultimately drain to or connect with major waterways.
"Although groundwater and surface water are often thought of as two different things, groundwater is frequently the sustaining supply for surface water," according to the Kentucky Geological Survey.
Kentuckians rely on the entire system for drinking water, agricultural use and more.
"It's really frustrating for a scientist to work as a legislator," Rep. Al Gentry, a Louisville Democrat and geologist by trade, said on the House floor, "because I feel a lot of times we pass stuff without giving things a lot of thought."
In the absence of regulatory oversight across Kentucky's sprawling hydrologic system, waters could be exposed to pollution from construction, unplugged oil and gas wells, septic systems, or other industrial contamination 'without recourse,' said Audrey Ernstberger, a Kentucky Resources Council attorney who advocated against SB 89.
When the bill passed out of a House committee Wednesday, Eastern Kentucky Rep. Bobby McCool was the lone Republican vote in opposition. McCool, a former coal miner, represents Martin County, where a coal slurry spill in 2000 and years of mismanagement and system failures amounted to a crisis for drinking water quality.
"I just cannot take a risk of hurting the water system, when I'm dealing already with public water, and we can't get that taken care of," McCool told the committee, "and we're talking about private wells ... I'm just not confident that has been taken care of."
Many of Kentucky's small and rural water systems are already struggling to maintain reliable, affordable water services while managing underfunded and aging infrastructure, The Courier Journal previously reported. Diminished water quality could necessitate increased treatment costs for public water systems, in turn increasing costs for ratepayers, the cabinet and other opponents of SB 89 said.
With the passage of SB 89, Kentucky opts to defer to federal definitions on waterway protections — even as protections at the federal level continue to shrink.
Following the U.S. Supreme Court's 2023 ruling on Sackett v. EPA, several state legislatures took on the issue of defining their own protected waters. Some, like Indiana, moved to loosen protections, while Illinois attempted to bolster them.
Some opponents of Kentucky's SB 89 took issue with the idea of ceding definitions of Kentucky's waters to the federal government. Those definitions are once again facing uncertainty, as the U.S. Environmental Protection Agency under President Donald Trump recently announced it would revise the rules to "cut compliance costs" and "reduce cost of living."
"I personally do not want somebody in Washington, D.C., making these decisions for me," said Rep. Adrielle Camuel, D-Lexington, on the House floor. "There's nobody there that knows Kentucky, knows our waterways, knows our environment the way that we do."
Connor Giffin is an environmental reporter at The Courier Journal. Reach him directly at cgiffin@gannett.com or on X @byconnorgiffin. Reach Lucas Aulbach at laulbach@courier-journal.com.
This article originally appeared on Louisville Courier Journal: Kentucky General Assembly approves weaker water pollution rules
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