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Environmental Groups Provide U.S. EPA with Notice of Intent to Sue Under the Clean Water Act for the Failure to Act on Kentucky’s Revised Antidegradation Regulations

On April 29, 2010, the Kentucky Waterways Alliance, Sierra Club, Kentuckians for the Commonwealth, and the Kentucky Resources Council, Inc. gave notice to the U.S. EPA that unless it approves or disapproves Kentucky’s revised antidegradation of water quality rules within 60 days,  the groups will commence a civil suit under the Clean Water Act seeking to compel the EPA Administrator to exercise her non-discretionary administrative duty to approve or disapprove the proposed rules under the Act.  On November 13, 2009, the Kentucky Division of Water submitted revised antidegradation rules to U.S. EPA for review and approval.

Pursuant to Section 303(c) of the Clean Water Act, the Administrator of the EPA must approve or disapprove the regulations within 90 days of their submission. 

Section 303 of the Clean Water Act requires each state to "institute comprehensive water quality standards establishing water quality goals for all intrastate waters."  EPA’s implementing regulations also require each state to "develop and adopt a statewide antidegradation policy, and identify the methods for implementing such policy."  40 CFR § 131.12(a).  Kentucky adopted an antidegradation policy in 1979 and implementation rules for that policy in 1995.  Litigation over these rules ensued.  In 2008, the Sixth Circuit Court of Appeals in Kentucky Waterways Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008) remanded Kentucky’s antidegradation implementation rules to EPA.  Kentucky submitted revisions to the rules on November 13, 2009 to EPA. 

The environmental groups claim that "due to political constraints and other counter-veiling forces" impacting on the Kentucky Division of Water, the revised rules contain "many of the same defects that caused the 2004 rules to be rejected by the Court of Appeals in 2008."  Additionally, the environmental groups claim that the Division of Water failed to address concerns previously expressed by EPA in prior disapprovals of earlier proposals. 

In failing to approve the rules, the environmental groups claim that the Administrator has failed to notify Kentucky of the changes to the proposed regulations as required.  The environmental groups further allege that as a result of this failure, the Division of Water continues to grant permits allowing new and unlawful pollution loading and that the new and increased pollution being permitted in violation of law has caused and continues to cause irreparable injury. 

It is uncertain whether EPA will provide the Division of Water with its proposed approval or disapproval of the regulatory package within 60 days.  In the event the Administrator fails to approve or disapprove the November 13, 2009 regulatory package, it is expected that the environmental groups will file suit in federal court.  In the event that EPA approves the regulations, the environmental groups will still likely mount a facial challenge to the regulations.  EPA’s action on the antidegradation regulations is of great importance to the regulated community since the environmental interest groups are seeking to impose more stringent limitations on discharges beyond those required by technology-based requirements or other water quality-based requirements.  

If you have questions regarding this alert, please contact any member of Greenebaum’s Environment, Energy and Natural Resources Practice Group

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