Kentucky ex rel. Hancock v. Train

No. 74-16 (E.D. Ky. August 31, 1976)

EPA acted properly in disapproving previously approved state water quality standards adopted by the Kentucky Department for Natural Resources and Environmental Protection. The Federal Water Pollution Control Act Amendments of 1972 (FWPCA) requires that the standards cover all waters of the United States located within the state. However, the state regulations promulgating the standards limited their application to only those waters represented on a map prepared in 1973 by the Kentucky Department of Commerce and entitled "Streams of Kentucky." EPA's disapproval, which came in response to plaintiffs' challenge to the legality of the limited standards, was thus proper and in fact required under FWPCA.

Counsel for Plaintiffs
Ed W. Hancock, Attorney General
David C. Short
David D. Beals Asst. Attorneys General
Rm. 26, Capitol Bldg.
Frankfort KY 40601
(502) 564-7600

Counsel for Defendants
Eldon Webb, U.S. Attorney
Robert F. Trevey, Asst. U.S. Attorney
P.O. Box 1490
Lexington KY 40501
(606) 252-2312

Patrick A. Mulloy
U.S. Department of Justice
Washington DC 20530
(202) 737-8200

Counsel for Intervening Plaintiff
Dean Hill Rivkin
J. T. Begley
Appalachian Research and Defense Fund of Kentucky, Inc.
630 Maxwelton Court
Lexington KY 40508
(606) 257-2771

William P. Hurley
231 South Fifth St.
Louisville KY 40202
(502) 589-6060

Counsel for Intervening Defendants Kentucky Chamber of Commerce
Robert S. Miller
Harry B. Miller, Jr.
Miller, Griffin & Marks
701 Security Trust Bldg.
Lexington KY 40547
(606) 255-6676

Counsel for Intervening Defendant Kentucky Municipal League
Frank W. Burke
Hottell, Burke & Shurman
1234 Louisville Trust Bldg.
Louisville KY 40202
(502) 583-8373

[6 ELR 20690]

Moynahan, J.:

JUDGMENT OF COURT

This case involves the proper scope of state water quality standards for the Commonwealth of Kentucky authorized by the Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1252 et seq. (hereinafter "FWPCA"). Pursuant to the FWPCA, each state is required to propose for Environmental Protection Agency approval water quality standards covering all waters of the United States located within the state. In the absence of a state proposal or in the event a proposed set of standards is insufficient under the FWPCA, the EPA is required to prepare and promulgate these water quality standards. 33 U.S.C. § 1313.

The factual genesis of this lawsuit lies in the adoption of Kentucky water quality standards by the Kentucky Department for Natural Resources and Environmental Protection on November 5, 1973, Kentucky Administrative Regulation WP-6-2, and EPA's approval of the standards regulation on February 18, 1974. The Kentucky regulation exclusively limited imposition of water quality standards to waters purported to be represented on a map prepared in 1973 by the Commonwealth of Kentucky Department of Commerce entitled "Streams of Kentucky." On June 25, 1974, plaintiffs initiated this lawsuit by filing a complaint challenging EPA's approval of Kentucky Administrative Regulation WP-6-2 and seeking conforming injunctive and declaratory relief finding the EPA approval unlawful and in violation of the FWPCA; the plaintiffs claimed the FWPCA required broader coverage of water quality standards to include waters not reflected on the map made part of Ky. Adm. Reg. WP-6-2. Intervening plaintiffs moved to join this action on July 16, 1974, raising substantially the identical claims made by the original plaintiffs and seeking parallel relief.

Prior to filing its response to the complaints, the Environmental Protection Agency, pursuant to 33 U.S.C. § 1313, initiated proceedings which culminated in the promulgation of a revised set of Kentucky water quality standards finalized on December 2, 1974. 30 Federal Register page 41709. The revised standards expanded imposition of water quality standards to waters of the United States as defined in 40 C.F.R. § 125.1 which were not depicted on the map.

During the pendency of the EPA proceedings leading to an expanded standards coverage, intervening defendants Kentucky Chamber of Commerce, inc., et al., moved to join this cause and, following finalization of the EPA revisions, were granted leave to initiate cross-claims against the Environmental Protection Agency. The intervening defendants and cross claimants as against EPA claim the EPA revisions are overly broad and substantively and procedurally unauthorized by the FWPCA. The intervening defendant Kentucky Municipal League has filed identical claims.

The federal defendants moved for summary judgment as against all parties on or about February 23, 1976, followed by motions for summary judgment filed on behalf of the original plaintiffs and intervening plaintiffs.

Upon the claims raised herein, the following Order, Judgment and Decree is entered:

(1) Any and all claims for injunctive relief are dismissed.

(2) It is declared that:

(a) The Environmental Protection Agency's August 7, 1974, action in disapproving previously approved Kentucky Water Quality Standards was proper and required under the FWPCA because those regulations limited imposition of water quality standards to waters depicted on the map "Streams of Kentucky" and such map failed the recognize the broad coverage of the Federal Water Pollution Control Act (FWPCA) and did not extend water quality standards to all waters of the United States as called for in the FWPCA and specified at 40 C.F.R. § 125.1(p) and furthermore said map is insufficient for defining coverage of water quality standards because many of the waters purported to be shown thereon are themselves incorrectly identified by name and configuration.

(b) The FWPCA authorized and required the Administrator of the Environmental Protection Agency to promulgate water quality standards for waters of the United States as defined by the FWPCA within the Commonwealth of Kentucky and specified at 40 C.F.R. § 125.1(p) which includes any subsurface waters having a clear hydrological nexus with those waters of the United States specified at 40 C.F.R. § 125.1(p).

(3) Any and all further claims, counter-claims and/or cross-claims are dismissed pursuant to Fed. Rule 41(a)(2).

(4) All parties are to bear their own respective costs.