Committee approves bill narrowing "waters of the Commonwealth" definition after hours of testimony on groundwater protections

The Committee on Natural Resources and Energy voted to approve Senate Bill 89 as amended on a voice/roll call vote after roughly 30 minutes of testimony and member discussion during a special-called meeting.

Senator Scott Maiden, Senate District 29, the bill sponsor, told the committee SB 89 would align Kentucky's definition of "waters of the Commonwealth" with the federal term "waters of the United States" and codify an existing method for calculating bonds related to long-term water treatment at mine sites. "One of the reasons I ran for office [was] to protect our coal miners, our coal communities," Maiden said, adding the changes would provide regulatory clarity "for Kentucky businesses, home builders, manufacturers, and our farming and coal industry."

Supporters listed by the sponsor included the Home Builders Association of Kentucky, Kentucky County Judge Association, Kentucky Farm Bureau, Kentucky Coal Association, American Petroleum Institute, Kentucky Association of Manufacturers, Associated General Contractors of Kentucky, Associated Builders and Contractors of Indiana and Kentucky, Agribusiness Association of Kentucky and Americans for Prosperity.

The bill and a committee amendment drew extensive opposition from water and environmental advocates and a technical presenter who said groundwater monitoring data shows persistent contamination. Reece Drew, founder and managing director of The Kentucky Steward, said his review of the Kentucky Geological Survey database tallied more than 637,000 groundwater quality readings from 1975 to 2024 and identified "over 19,000 separate instances from 1979 to 2024 of carcinogenic contaminants exceeding their MCLs." He urged that the bill explicitly retain the word "groundwater." "Redefining waters of the Commonwealth to exclude groundwater ... will not only bring about unprecedented environmental and community health fallout," Drew said.

Rebecca Shelton, director of policy at Appalachian Citizens Law Center, said the bill "eliminates protections for private drinking water wells" and warned the change could force thousands of Kentuckians to pay for costly treatment or connection to public systems. Shelton said hooking a home to public water can run into "thousands of dollars" and described a testifier's experience paying more than $3,000 to install a filtration system and $600 to $8,800 in annual maintenance.

Nick Hart, water policy director for Kentucky Waterways Alliance, asked the committee to preserve the state's existing definition and requested a Legislative Research Commission statutory and economic review before changing state law. Hart noted KRS 224.16-050 and 401 KAR 5:055 already constrain state regulation to not be more stringent than federal requirements and called the definition a core state right.

Audrey Ernstberger of Kentucky Resources Council said the amendment did not fix core problems she and other opponents identified. Ernstberger argued the bill would leave many karst aquifers, ephemeral streams and upstream ponds without the same level of state protection, and she told lawmakers that "about 65% of our streams and rivers are ephemeral or intermittent" and that "3,000,000 people receive drinking water from public water systems that rely at least in part on streams that will lose protection under these bills." "SB 89 is a free pass for pollution and a betrayal of Kentucky's most precious resource, its water," she said.

Committee members explained their votes on the floor. Representative Hancock asked to "explain my no vote" and said, "I ran on protecting Kentuckians and Kentucky families. I'm proud to vote no." Representative McCool and Representative Moore said concerns over impacts to private wells and agricultural water led them to a "no" vote. Representative Miles asked to record a "yes" vote and thanked the sponsor and amendment drafters for their work. Representative Smith said the bill was important for protecting farmers and contractors and cast a "yes" vote.

The clerk conducted a roll call. The committee recorded 16 affirmative votes and 4 negative votes; the bill passed with favorable reporting and the sponsor moved to roll the amendment into a committee substitute. The committee voted to do so.

The committee action advances SB 89 to the next stage of consideration in the legislative process. The committee's amendment explicitly listed navigable waters, sinkholes with open drains, naturally occurring artesian and springs used for domestic water supply, and wellhead protection areas as included features, and the sponsor said Louisville Water and other stakeholders participated in drafting the amendment.

No effective date or implementation schedule was specified during the meeting, and the committee did not adopt additional directions for state agencies. Several speakers asked for further statutory and economic review; the committee did not make such a referral on the record during the special meeting.

Members of the public and numerous organizations testified either in favor of retaining current state definitions or supporting alignment with federal definitions to reduce regulatory uncertainty. The transcript shows the primary points of contention were (1) whether redefining the state's jurisdictional waters would remove protections for groundwater and private wells, (2) the degree to which the amendment's inclusion of wellhead protection areas and specific features would mitigate those concerns, and (3) whether the change would be consistent with or surrender a state's traditional right to define its waters.

The committee's approval sends SB 89, as amended and rolled into a committee substitute, forward in the legislative process; no final enactment occurred at this meeting.