Sen. Scott Madon, R-Pineville, raises his hand Jan. 7 as the Senate is sworn for the 2025 legislative session. Madon’s predecessor, the late Sen. Johnnie Turner of Harlan, started work on Senate Bill 89, which is supported by the coal industry. (LRC Public Information)
A bill that would limit regulation of water pollution in Kentucky to a weakened federal standard advanced Wednesday from a state legislative committee, lawmakers touting it as relief from bureaucracy for industry.
Environmental advocates and a former state environmental attorney lambasted the measure, Senate Bill 89, saying it could degrade water quality across the state, particularly wetlands, groundwater and waterways considered to be headwater or ephemeral streams. Headwaters are the origins and smallest parts of streams farthest from the endpoint of waterways, and ephemeral streams have running water only part of the year.
SB 89 passed out of the Senate Natural Resources and Energy Committee with votes from all present Republicans and one Democrat, Sen. Robin Webb, D-Grayson. Sen. Keturah Herron, D-Louisville, cast the only vote against the bill.
The bill’s primary sponsor, Sen. Scott Madon, R-Pineville, said the late Sen. Johnnie Turner began work on SB 89. Turner died less than a month before last year’s general election. Madon, the former mayor of Pineville, won the seat as a write-in candidate.
Madon, presenting the bill alongside representatives of the Kentucky Coal Association, described it as a “common sense approach to energy policy,” saying the coal mining industry has been hampered by permitting barriers over water regulation.
Madon in his testimony referenced a 2023 ruling by the U.S. Supreme Court that sharply limited the federal government’s ability to police water pollution for bodies of water and wetlands that don’t have a continuous surface connection to larger, regulated waterways.
‘Not really waters,’ says bill sponsor
“The effects of this decision was that small, [ephemeral] drains and many wetlands — places that are not really waters but rather are just wet when it rains — are no longer subject to federal permitting. This decision was huge, was a huge win for industries and the private landowners,” Madon said.
He said the Kentucky Energy and Environment Cabinet is still regulating “streams and wetlands that are no longer subject to federal regulation, causing delays and unnecessary red tape for the coal industry.”
Madon did not offer specifics about the permitting challenges when asked by the Lantern, though he said permitting barriers have arisen under both Democratic and Republican governors. A spokesperson for the Energy and Environment Cabinet didn’t respond to a request for comment about the permitting challenges Madon referenced.
Litigation over how far reaching protections are under the Clean Water Act has stretched over decades as various federal administrations have tried to define “waters of the United States” in more expansive, or restrictive, terms.
The 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. Madon said his bill would align the state’s water regulations to that standard
SB 89 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 refer to the federal definition of “navigable waters.” The bill also sets bonding requirements for coal companies seeking permits for long-term treatment of water leaving mine sites.
‘This bill is catastrophic,’ says environmental attorney
Environmental groups and a former state attorney who litigated cases of environmental damage strongly criticized the bill as having wide-reaching consequences, not only for the state’s ecology but also for costs communities would have to bear to deal with water pollution.
“What he’s calling red tape I would put forward is actually the process and the enactment of protections of waterways from hazardous pollutants and from damages to their integrity,” said Michael Washburn, the executive director of the nonprofit Kentucky Waterways Alliance. “What SB 89 is really looking to do is just further tie the hands of the state.”
Washburn said groundwater and other sources of water for private wells and public water systems could be threatened by the change in definition. he destruction of wetlands, he said, could remove a potential natural control mechanism for flooding in Eastern Kentucky.
According to a fact sheet from the Kentucky Geological Survey, more than 1.5 million Kentuckians are served by over 100 public water systems that rely on groundwater, and about 416,000 Kentuckians use water wells or springs. The U.S. Environmental Protection Agency previously estimated that of Kentucky’s 79,752 miles of streams and rivers, about 65% of them are ephemeral or intermittent.
Audrey Ernstberger, an attorney with the environmental legal group Kentucky Resources Council, told the committee groundwater could be polluted by underground storage tanks, septic systems, unplugged oil and gas wells and landfills without recourse from state officials, who clean up spills of hazardous substances and enforce pollution controls on industry. Ernstberger also advocated for the value of protecting ephemeral streams, saying they filter pollution and provide habitat for aquatic wildlife.
“The economic consequences of this bill could be severe. Public water treatment costs could increase as utilities struggle to manage higher contamination levels,” Ernstberger said. “We all live downstream of something, and all rivers start somewhere.”
Madon said in an interview after the committee approved the bill that environmentalists were trying to say “the sky is falling” and that he didn’t want state regulation to overreach what’s established by federal regulations.
“I just think we need to let our coal companies go to work and put our coal miners back to work and let’s harvest our coal,” Madon said.
Kathryn Hargraves, an attorney who worked from 1981 to 2003 in the Kentucky Natural Resources and Environmental Protection Cabinet, now known as the Energy and Environment Cabinet, told the Lantern the bill would mean water quality standards for permits issued by the cabinet would no longer protect wetlands and ephemeral streams. She said having spent her career litigating “environmental cleanup messes” for the state, the impact of pollution takes a long time to fix once it’s been done.
“This bill is catastrophic,” Hargraves said. “It’s easy to enact stuff. You know, you can sign it with a pen, but the results on the ground you can’t fix, you can’t fix it with the stroke of a pen.”