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Kentucky Waterways Alliance v. Johnson

ELR Citation: 38 ELR 20227
Nos. No. 06-5614, (6th Cir., 09/03/2008)

The Sixth Circuit affirmed in part and reversed in part a lower court decision upholding U.S. Environmental Protection Agency's (EPA's) approval of Kentucky's regulatory implementation of its Tier II water quality antidegradation rules. EPA's approval of Kentucky's classification of certain waters as eligible for Tier I protection rather than Tier II protection was not arbitrary, capricious, or contrary to law. However, EPA erred in approving Kentucky's categorical exemption of six types of pollution discharges from the Tier II review procedure. Five of the categorical exemptions were designated as causing "de minimis" water-quality loss, but EPA failed to determine whether the exemptions together permit significant degradation. And while the Agency's decision document detailed the tests conducted to measure each exemption's impact, it often failed to include the resulting measurements. The sixth exemption concerned coal-mining discharges. In approving the exemption, EPA erroneously credited Kentucky's existing regulations as requiring coal-mining dischargers to demonstrate economic or social necessity when, in fact, the regulations do not. Kentucky's "socioeconomic review" is found not in its water quality regulations, but in an informal commitment to EPA. Relying on this commitment, EPA approved the coal-mining exemption. Securing an informal commitment from a state agency rather than requiring the state to amend its regulations violates the federal approval procedure established by Clean Water Act §303(c)(3). These exemptions were therefore remanded for reconsideration.