Court rejects state's water quality exemptions

Coalfield residents and all Kentuckians who like clean water got a partial victory Wednesday when the U.S. Court of Appeals agreed that the state’s practice of granting water quality exemptions is "arbitrary and capricious." The three-judge panel rejected 5 of 6 state exemptions, including a blanket exemption of coal mining discharges from "anti-degradation review.â€

"We’ve long believed that the numerous exemptions in Kentucky’s regulations could seriously degrade water quality. The court opinion makes it clear that the Clean Water Act requires anti-degradation rules work to maintain water quality and EPA must look seriously at the individual and cumulative impact of  … exemptions prior to approving them,â€ said Judith Petersen, executive director of Kentucky Waterways Alliance and the lead plaintiff in the case.

The 24-page opinion found that U.S. EPA's approval of five exceptions was "arbitrary and capricious" because EPA never required Kentucky to prove that the multiple exceptions would cause only insignificant degradation of the state's rivers, lakes and streams. The exemptions involve the use of public waters for storm water permits, sewage from single-family residents, waste disposal from industries and discharges from concentrated animal feeding operations.

The Court also rejected EPA's approval of Kentucky's blanket exemption of coal mining discharges from anti-degradation review. EPA approved this practice based on a letter from the state rather than a regulatory or statutory change that would have provided the public the right to comment on the rules.

We work diligently to protect our most important natural resource – water. And we’re delighted that the court stepped up to insist that mining be activities be held to the same standard as other permitted discharges,

KFTC Canary Project Fellow Teri Blanton

The legal action was filed under the "anti-degradationâ€ provisions of the federal Clean Water Act. States are required to develop and implement rules to prohibit degradation of good water quality unless it is necessary to allow such degradation to accommodate important social or economic development.  Kentucky developed plans that were rejected by EPA in 1997 and 2000. In 2005, given the absence of any approved state plan, KWA, KFTC and other plaintiffs sued the U.S. EPA asking that it be required to implement a plan for Kentucky. Shortly thereafter, EPA approved the state’s current draft of an anti-degradation plan. The plaintiffs then challenged specific parts of that plan.

 While rejecting the exemptions, the Court upheld provisions on how Kentucky classifies streams (we wanted the state to have to consider more closely the impacts of individual pollutants).

The Court's opinion sends Kentucky's rules back to U.S. EPA for further review. Kentucky will likely have to significantly revise and improve its rules in order to comply with the Court's opinion.

Joining KWA and KFTC in the legal action were the Sierra Club Cumberland Chapter and the Floyds Fork Environmental Association. We were represented by the Environmental Law and Policy Center and the Kentucky Resources Council.