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Thursday, September 04, 2008

Environment - "Court Tells EPA to Guarantee Kentucky Rules Do Not Allow Significant New Pollution in State’s Waterways"

From a NKY Sierra Club press release:

Louisville, KY – Today, the U.S. Court of Appeals for the Sixth Circuit issued its opinion in the case of Kentucky Waterways Alliance v. Johnson, reversing and remanding in part Environmental Protection Agency's approval of Kentucky's flawed antidegradation rules. The Kentucky antidegradation rules at issue are required by the federal Clean Water Act, and are intended to protect water quality of streams, rivers and lakes whose quality exceeds the minimum level necessary to support the Act’s “fishable” and “swimmable” goals. * * *

The Court agreed with Plaintiffs that the EPA had acted arbitrarily and capriciously in approving Kentucky's rules that allowed exceptions to the requirement of justifying a lowering of water quality of high quality waters.

The 24-page opinion found that EPA's approval of five of the six exceptions was "arbitrary and capricious" because EPA never required Kentucky to prove that the multiple exceptions contained in Kentucky's rules would cause only insignificant, or "de minimus," degradation of the state's rivers, lakes and streams.

“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 antidegradation rules work to maintain water quality and EPA must look seriously at the individual and cumulative impact of the so-called “de minimis” exemptions prior to approving them,” said Judith Petersen, Executive Director of Kentucky Waterways Alliance

The Court also rejected EPA's approval of Kentucky's proposed antidegradation review for coal mining discharges. Despite the blanket exemption of coal mining discharges from antidegradation review by Kentucky, EPA approved the state rule based on a letter commitment by the state that it would interpret its regulation to require such reviews. The Court agreed with Plaintiffs that securing informal commitments from a state rather than requiring that its regulation be amended violates the Clean Water Act and abridges the right of the public to comment on proposed rules. * * *

Plaintiffs also objected to Kentucky's method for determining which waterways deserve antidegradation protection. The Court agreed that the state must protect all waters whose quality "exceed[s] levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water," but was not persuaded that Kentucky's specific procedures violated the law.

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, and the result will be increased scrutiny of the use of public waters for waste disposal from industries, confined animal feedlot operations, cities, and under stormwater permits.

The LCJ has a story here.

Here is the 6th Circuit's 24-page opinion in the case of Kentucky Waterways Alliance v. Johnson

Posted by Marcia Oddi on September 4, 2008 08:50 AM
Posted to Environment