6th Circuit Decision in Antidegradation Case Rejects In Part EPA’s Approval of Kentucky Water Quality Rules

September 8, 2008

The U.S. Court of Appeals for the Sixth Circuit issued an opinion on September 3, 2008 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. Plaintiffs Kentucky Waterways Alliance, Sierra Club Cumberland Chapter, Kentuckians for the Commonwealth, and Floyds Fork Environmental Association were represented by the Environmental Law and Policy Center and the Kentucky Resources Council, Inc.
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 5 of the 6 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.
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 it’s 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 by Plaintiffs that Kentucky’s specific procedures violated the law or that a “parameter by parameter” approach to protecting water quality is mandated by the federal law.
The Court’s opinion sends Kentucky’s rules back to U.S. EPA for further review. KRC and the other parties will be in discussion with EPA and Kentucky regarding the significant revisions and improvements in the state regulations that will be required in order to comply with the Court’s opinion. The result will be increased scrutiny of the use of public waters for waste disposal from industries, confined animal feedlot operations, cities, coal mining, and under stormwater permits.

To read the opinion, go to http://www.kwalliance.org/Portals/3/6th%20Circuit%20Decision.pdf

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