— by Liam Niemeyer, Kentucky Lantern —
FRANKFORT — A bill that would limit state regulation of water pollution in Kentucky picked up an amendment in a House committee Wednesday morning, but opponents say the changes don’t do enough to protect against groundwater contamination while small streams and wetlands would still be stripped of state environmental protections.
That bill gained House passage Tuesday afternoon along party lines. The minority of Democrats echoed concerns from environmental groups and the secretary of the Energy and Environment Cabinet who said even with the amendment the measure is “very concerning.”
“The bill threatens the water quality of many Kentucky rivers, streams, and tributaries and, as a result, would significantly compromise Kentucky’s groundwater, impacting the water quality of more than 31,000 private use wells and at least 156 public water systems,” Secretary Rebecca Goodman wrote in a letter to House members.
Audrey Ernstberger, an attorney and lobbyist for the Kentucky Resources Council, told the House Natural Resources and Energy Committee on Wednesday the amended SB 89 “exposes rural communities to pollution risks that could devastate local economies and health.”
Senate Bill 89 sponsor, Sen. Scott Madon (R-Pineville), and Rep. Jim Gooch (R-Providence), the chair of the House Natural Resources and Energy Committee, said they worked with various groups to add an amendment to SB 89 after fielding concerns the legislation didn’t adequately protect against groundwater pollution, leaving private water wells vulnerable in particular.
Madon, speaking before the House committee next to a lawyer representing the Kentucky Coal Association, reiterated his reasoning for SB 89 arguing that industries from farming to manufacturing to coal mining would benefit from a limited definition of what waters the Kentucky Energy and Environment Cabinet can regulate.
”The more I learned, the more I realized this isn’t just a coal industry issue. These issues are affecting a wide variety of businesses and job creators across the Commonwealth,” Madon said.
Madon pushed back on criticisms that the bill would threaten groundwater, saying he worked with the drinking water utility Louisville Water Company on changes to the bill.
Vince Guenthner, a senior utilities consultant for the Louisville utility, told the Lantern he worked with Senate President Robert Stivers, Gooch, Madon and Kentucky House leadership on changes to SB 89. Guenthner said he believed the changes protected Louisville’s water supply along with “a vast majority” of public drinking water supplies in the state. He said his conversations with lawmakers did not discuss private drinking water wells.
The amended SB 89 passed the House committee with all Republicans except one voting in favor of the bill. Democrats opposed the bill, citing concerns from environmental groups that the bill could harm the private drinking water sources of rural Kentuckians.
Gooch said he met with the Energy and Environment Cabinet on changes to the bill, but that it was his understanding the cabinet believed the changes did not go “far enough” with water protections. The secretary of the Energy and Environment Cabinet in a letter dated Wednesday expressed she still has “grave concerns” about the amended version of the legislation. A cabinet spokesperson did not immediately provide a comment on the amended version of SB 89.
When asked about concerns from environmental groups about the amended bill still not adequately protecting groundwater, Gooch told the Lantern lawmakers would be willing to revisit the issue if “a well is not being protected, especially private wells.”
“Too many people in the state depend on those, and we’ll be looking at that,” Gooch said. “It might be in a couple years we may have to come back and tweak something.”
Gooch characterized one environmental lobbyist’s testimony as “hyperbole” during the Wednesday committee hearing.
Changes don’t alleviate environmental groups’ concerns
Environmental groups and a representative of a Letcher County nonprofit law firm in Eastern Kentucky in testimony honed in on strong concerns they still had about the bill’s impacts on groundwater and the state’s water resources at large, asserting the changes didn’t go far enough to protect Kentuckians from potential water pollution.
The amended version of SB 89, like the original, still changes the definition of “waters of the commonwealth” by removing “all rivers, streams, creeks, lakes, ponds, impounding reservoirs, springs, wells, marshes, and all other bodies of surface or underground water, natural or artificial.” The state definition is changed to instead mirror the federal definition of “navigable waters.” The bill also still sets bonding requirements for coal companies seeking permits for long-term treatment of water leaving mine sites.
A U.S. Supreme Court ruling in 2023 that drastically cut the federal government’s ability to regulate bodies of water and wetlands led to the Biden administration weakening federal rules on water pollution. Litigation over how expansive protections are under the Clean Water Act has continued over decades as various federal administrations have tried to define “waters of the United States” in more broad, or restrictive, terms.
The bill’s amendment expands the definition of regulated state waters beyond the weakened federal standard in specific, limited cases, though not in ways that alleviate concerns from environmental groups.
The amendment would add to the state definition sinkholes with “open throat drains;” naturally occurring “artesian or phreatic springs” and other springs used as water supply sources; and wellhead protection areas, which are surface and subsurface areas surrounding a water well or wellfield supplying a public drinking water system.
Ernstberger in an interview with the Lantern said the specific examples included in the bill’s amendment don’t account for the variety of geological features involving groundwater such as karst aquifers. In testimony before the committee she said tens of thousands of agricultural wells along with private drinking water wells in rural Kentucky remain vulnerable to pollution.
“SB 89 also excludes off-stream ponds, reservoirs, and headwaters. To say that none of these water resources require the same level of protection as our rivers and lakes is not just irresponsible. This is dangerous,” Ernstberger said.
Nick Hart, a water policy director for the Kentucky Waterways Alliance, in testimony called on the legislature to preserve the existing definition of regulated state waters and instead take time to study the economic and statutory impacts of SB 89.
Rebecca Shelton, the director of policy at the Letcher County-based Appalachian Citizens’ Law Center, told lawmakers about how she uses a filter for a water well on her Eastern Kentucky property because the water contains heavy metals and bacteria. She said she’s paid thousands of dollars to install the filter and maintain it and worries how SB 89 could impact other private well owners.
“I’m fortunate to have had these choices and the ability to pay for them. Yet I know there are still areas of Letcher County that do not, where households do not even have the option of hooking up to the public water system because the lines don’t run to their house,” Shelton said.
Rep. Bobby McCool (R-Van Lear), the only Republican to vote against the modified bill passing the committee, cited concerns about private water wells and impacts on utilities for his opposition. McCool represents Martin County that has for years dealt with infrastructure woes with its public drinking water utility.
“I certainly appreciate the efforts in trying to help with the coal industry,” McCool said. “I just cannot take the risk of hurting the water system.” He said he wasn’t confident concerns about private wells were “taken care of.”
On the House floor, McCool was one of seven Republicans to join the minority of Democrats in opposing the bill. The House passed the measure 69-26, sending it back to the Senate to either concur with or reject the House changes.
Rep. Chad Aull (D-Lexington) on the House floor repeated what Goodman, secretary of the Energy and Environment Cabinet, wrote in her letter. Kentucky would be the only state to cede its authority to define its own regulated waters, she said, which in turn could cost it “primacy” or the right to manage federal regulatory programs. “This is not where Kentucky needs to be the exception,” she said.
Aull said, “We put at risk our drinking water supplies for hundreds of thousands, if not millions, of our people. This bill fails to consider how Kentucky’s water chemistry is dependent on the entire watershed including those seasonal streams, and that underground and interconnected waterways will lose protection.”
Gooch responded by characterizing Aull’s comments as “hyperbole” similar to how he characterized the comments from an environmental lobbyist earlier in the day.
“There are people who we could not write an amendment that would please all of them,” Gooch said.
Rep. Suzanne Miles (R-Owensboro), who voted in favor of the bill advancing, said the amendment came about from multiple people working on the changes.
“I think it’s very important for all of us to recognize we all want clean water, and that is the intent of amending and just reassuring that we’ve protected the water,” Miles said.
This story has been updated with the House vote and a link to a letter from Kentucky Energy and Environment Secretary Rebecca Goodman.
Energy and Environment Secretary Rebecca Goodman’s letter to House members
Utilities dependent upon groundwater
Domestic use wells impacted by groundwater
