A fix being floated for Senate Bill 89 falls far short of repairing the damage the bill would do to protections for Kentucky water, writes Tom FitzGerald. (Getty Images)
Few bills have generated as much controversy in the 2025 General Assembly as Senate Bill 89, which would narrow protected “waters of the commonwealth” to match only those surface waters protected under the federal Clean Water Act.
Presented as merely aligning Kentucky’s permitting of pollution discharges to those included under the federal law, the redefinition goes much further and excludes from the prohibition on water pollution all groundwater and the private wells that rely on it; all headwater streams; and off-stream ponds, lakes, and reservoirs.
In response to the public opposition, a House committee amendment has been drafted that gives the appearance of reducing the damage that will be done by SB 89 yet still fails to protect almost all rural Kentucky’s households and farms that rely on private wells.
The amendment adds “sinkholes with open throat drains” into the newly narrowed definition of “waters of the commonwealth.” Yet sinkholes are not waters at all but instead represent a collapse of the ground surface into underground cavities that may be created by erosion or by water flow creating solution channels through limestone formations. Still left unprotected are karst aquifers and other karst water resources, which are among the most vulnerable to contamination and may become contaminated through means other than open throat sinkholes.
The new definition also excludes all other groundwater resources that are or could be used for a range of beneficial uses, including domestic supply, drinking water, agricultural and farmstead use, food preparation and industry. The amendment adds back none of these protections.
The amendment language adds some springs to the definition of protected waters, yet it is wells, and not “phreatic” or “artesian” springs (two added and undefined terms), that are the primary source of groundwater access for rural Kentuckians. The tens of thousands of private wells used for agricultural and for household uses remain without protection. The shallow fracture-flow dominated wells in Eastern Kentucky, alluvial wells throughout Kentucky, wells drawing from both confined and unconfined aquifers across the commonwealth — all of these would no longer be protected as “waters of the commonwealth.”
Driving an unfortunate wedge between Kentucky residents who have public water and those on private wells, the committee amendment adds “Wellhead Protection Areas,” from which public water wells derive their source, back into the definition of “waters of the commonwealth,” yet no protection would be restored for the groundwater resources from which private household and agricultural wells produce, nor for the surface areas where streamflow, rainfall and snowmelt recharge those groundwater resources.
Ponds, lakes and reservoirs that do not have a “continuous connection” with a navigable river or stream remain excluded from protection.
Farmstead ponds that are excavated off-stream for water supply or flood control or which impound ephemeral streams would remain unprotected against water pollution.
The House committee amendment does nothing to address the risk that the changed definition of “waters of the commonwealth” creates for hazard spills and releases. Kentucky law imposes a duty to avoid releases of hazardous substances, pollutants, and contaminants “into the environment,” which is defined in turn to include “waters of the commonwealth.” If SBl 89 passes and the “environment” no longer includes groundwater or headwater streams under Kentucky law, contamination of either will no longer trigger reporting, action or cleanup.
Headwater and other ephemeral streams which flow in response to rainwater and snowmelt — vital for slowing floodwaters, supporting aquatic ecosystems and conveying water downstream to millions of Kentuckians using surface waters for public supplies, would remain excluded under this amendment. Unregulated pollution into ephemeral streams, resulting in lower water quality downstream and increased costs for our drinking water systems and downstream dischargers, will not be fixed by this amendment.
In short, the House committee amendment does very little to fix the significant problems created by SB 89’s redefining “waters of the commonwealth.”
No justification has been provided for why this bill or the House committee amendment does not leave intact the current definition of “waters of the Commonwealth” and instead more narrowly and precisely amend KRS 224.16-050, the statute that specifically deals with permitting discharges into surface waters under the Clean Water Act.
SB 89 creates numerous holes in the protections that current law extends to all “waters of the commonwealth.” The House committee amendment being floated does not patch those holes and unfortunately won’t hold water.