Senate Bill 89 proposes redefining “waters of the Commonwealth” - the bodies of water covered by state environmental protection laws - to align with the narrower federal definition of ‘navigable waters’. If passed, Kentucky’s groundwater, wetlands, and ephemeral streams would no longer be protected from pollution or subject to regulatory oversight.
“Currently, Kentucky defines waters of the Commonwealth broadly, covering all surface and groundwater,” said Audrey Ernstberger, staff attorney and lobbyist for the Kentucky Resources Council. “SB 89 would make Kentucky the only state in the United States to completely surrender its own authority to define and regulate its own waters to the federal government.”
When the Clean Water Act established the federal standard of “waters of the United States” (WOTUS) in 1972, it allowed for the regulation of pollution in both large and small bodies of water, including wetlands and groundwater. However, in the 2023 Sackett v. EPA decision, the U.S. Supreme Court ruled that only waterways with a "continuous surface connection" to larger bodies of water could be regulated under the federal standard.
Proponents of the bill say it would reduce compliance costs and encourage more development and business expansion across the Commonwealth. Senator Scott Madon, the bill’s primary sponsor, says its passage would be a “huge win” for industries and private landowners.
However, Kentucky Poet Laureate Silas House expressed concerns that benefits for some industries could come at the expense of others. He highlighted the state’s tourism industry which, in 2024, generated $256 million and created 1,696 new jobs through the tourism tax credit program.
“The toxic waste dumped into our streams will eventually go over the mighty Cumberland Falls and collect in the peaceful coves of Kentucky Lake,” said House. “Tremendous revenue is generated every year from hunting, fishing, boating - all which will be endangered by the passage of this bill. We cannot sacrifice all of that to allow companies to pollute even more than they already do.”
Unregulated headwaters and wetlands could also impact the state’s supply of drinking water. In a letter Energy and Environment Cabinet Secretary Rebecca Goodman wrote to Representative Jim Gooch last month, she expressed serious concerns about Senate Bill 89, warning that over 31,000 private wells and 156 public water systems could be impacted, potentially increasing water treatment costs for residents.
Madison Mooney is a community organizer from Martin County where, despite decades of mitigation efforts, residents struggle to access clean water in the wake of a coal slurry spill in 2000.
“Growing up as a child in this region, I've always been taught not to drink the tap water, not to play in the creeks for too long, or not to play in the river,” said Mooney.
According to a study by the Appalachian Citizens Law Center, Martin county residents pay the second highest rate relative to income for drinking water in the state.
“Any extra pollution would make water even more unaffordable for us, the residents, because water treatment costs will trickle down to us,” said Mooney. “The more extensive the treatment process is, the more expensive the water will be.”
“There's pollution upstream - it's all coming downstream,” said Gerry James, cofounder of River Row Boathouse in Frankfort where the press conference was held. When statewide severe weather caused the Kentucky River to rise last month, James’ basement flooded with water and silt that had been carried hundreds of miles across dozens of counties.
“This is not a partisan issue,” said James. “This is a very bipartisan issue. It impacts folks from our mountains of Eastern Kentucky to Louisville to, you know, all the way to our Mississippi River region.”
Senate Bill 89 was passed by the Senate last month and is scheduled to be read before the House committee on Natural Resources & Energy Thursday, March 6.