SB 226 - Weakening Protections for Endangered Species & Water Quality

Testimony In Opposition To SB 226

Chair Gooch, members of the Committee, I appreciate this opportunity to testify very briefly in opposition to Senate Bill 226. I have conveyed these concerns to Senator Turner, so he is aware of what I’m going to say to the committee today.

Protection of threatened and endangered species has been a national policy for fifty years, crafted in a bipartisan manner and signed into law by a Republican President after it passed unanimously in the Senate and by a vote of 355-4 in the House of Representatives.

Where an activity, like strip mining, will occur in a watershed that is habitat for a federally-protected species, the Endangered Species Act overlays a requirement for a determination of possible effect, followed by interagency consultation, which may result in the development of mitigation measures to minimize the adverse effects or “taking” of the species.  It is exceedingly rare that a project is stopped by the ESA, and far more likely a result that efforts are made in the design of the activity to minimize impacts.

Where placement of dredged or fill material in a water of the United States is proposed, whether it be a head of hollow or valley fill, wetland filling, instream sediment pond, or other such impact, a permit or authorization is needed from the U.S. Army Corps of Engineers, under Section 404 of the Clean Water Act. The applicant is required to avoid impacts, minimize what can’t be avoided, and mitigated what is impacted.

The Corps of Engineers, in its permit review, requests that the state certify that the activity, not merely the discharge but the whole activity, won’t violate the state’s water quality standards. These are the standards – numeric and narrative, adopted by the state to protect the designated uses of the stream, river, or lake. The Corps relies on that certification in meeting part of its obligations under the Clean Water Act.

This bill interferes substantially with the Cabinet’s ability to properly apply the state water quality standards when writing permits for discharges into waters with federally protected species. My detailed comments to Senator Turner reprinted below explain how that interference occurs.

The effect of this bill, I believe, will be the exact opposite of what the sponsor intends, which I understand to be an expectation of a timely decision on permit applications that have provided complete and sufficient information to allow a meaningful review of the proposed activity and its impacts. That’s a reasonable expectation.

But the result of enacting Section 1 will be one of two, I fear -- either the Cabinet will apply the presumptions and limitations in Section 1, in which case EPA will likely demand to review each permit and the other federal agencies typically involved in permit and other reviews (USFWS and the Corps of Engineers) will increase their scrutiny over the permits and activities, resulting in even greater delay, and third-party challenges to permits involving discharges affecting federal T&E aquatic species will become more numerous. If the state can’t do what it is required to under Section 401 and 402 of the Clean Water Act, we may face a challenge to the delegated approval from EPA to manage the discharge permit program. Alternatively, the Cabinet will determine that it cannot implement Section 1, placing the agency in a difficult position between a state legislative mandate and its obligations as a delegated program state under the NPDES program.

The changes to Section 3 are of concern both because the timeframe may be unworkable, depending on how one defines a “complete” application, and also because the water quality certification should cover the entire project impacts on waters, not merely the discharge.

Thank you for this opportunity to share my concerns.

Tom FitzGerald, Of Counsel for Kentucky Resources Council

Below is the text of of Tom FitzGerald's email to Senator Turner expressing concerns on SB 226

Senator:

In preparation for our meeting this Thursday on Senate Bill 226, I wanted to outline more specifically the concerns I have regarding the bill. Here they are, referenced by page and line:

1. On Page 1 Lines 10-16:
   
   Creating a presumption that compliance with technology-based effluent limitations or protection measures imposed by other agencies, violates Kentucky's obligations under the delegated Clean Water Act KPDES permitting program.
   
   The limits imposed on discharges from "point sources," which would include sediment ponds from mining operations, for example, are required to be based on consideration of the technology-based effluent limits and water-quality based effluent limitations (WQBELs).  Where necessary to assure maintenance of the designated use(s) of the stream (in this case, habitat for protection of T&E species) the more rigorous of the limits will apply.  Ignoring WQBELs is not allowable under the NPDES permit program.
   
   Also, the "presumption" that is created in Section 1(1) does not explain what information if required to rebut the presumption, or how the agency is to manage such presumptions.
    
2. Section 1(1)(b), line 21, uses the phrase "material decrease" but does not define what is material.  It uses "similar" but does not explain when one threatened or endangered species is to be considered similar to another, and how that is measured.
    
3. Section 1(1)(c) attempts to limit the Cabinet's imposition of discharge limits to those imposed by USFWS, but that agency does not suggest or impose specific water quality discharge limits.  Also, it is not merely the discharge that is of concern, but may include the alteration of habitat caused by an activity such as, for example, filling of a headwater stream reach by a hollow fill, or isolation of that stream, reach by an instream pond lower in the watershed.
    
4. Section 1(1)(d) presumes that compliance with numeric standards equals compliance with narrative standards unless the USFWS mandates otherwise.  Again, USFWS does not dictate specific numeric or narrative water quality limits, but instead makes findings of whether an activity will jeopardize a T&E species.  With respect to the narrative and numeric standards, they work in tandem and the decision on whether pollutants other than those for which there are numeric limits require controls based on narrative standards (such as whole effluent toxicity) cannot be delegated to USFWS.
    
5. Section 1(2) requires that the cabinet clearly document the basis for its decisions, which is already a requirement of the regulatory program. It suggests that the Cabinet can still impose limits based on narrative water quality standards, but does not define how the cabinet overcomes the "presumption" that compliance with numeric standards equals compliance with narrative standards.

With respect to Section 2 of the Act,
The statutory mandate that failure to act within set timeframes constitutes a final and reviewable determination, raises a question to me as to what would be reviewed in such a case.  Since a determination on the merits of a permit application would not have been made, it would appear that the only relief available would be a mandamus to require that a decision be made, which relief is already available under law.

Section 3 is of concern for three reasons.

1. First, it applies to all water quality certifications, and not only to those involving surface coal mining operations that are seeking a Section 404 permit for which a water quality certification has been requested by the Corps.  I don't know that a sixty calendar day timeframe is achievable for all such cases.
    
2. Second, it is unclear whether "complete" as used on p. 4 of the bill means administratively complete or technically complete. Administratively complete means that all of the pieces are there, but there may be additional information or data needed to complete technical review.  If, for example, the Cabinet begins technical review and identifies deficiencies, sends a notice of deficiency, and the applicant does not respond immediately, the clock might run out while the agency was awaiting the information needed to make a technical determination on whether to certify that the water quality standards would be met.  An unintended consequence of a process that does not provide for full review of an application and time for the give and take typical of such review, might result in more denials of water quality certifications.
    
3. Finally, Section 3(3) indicates that the water quality certification is limited to the impacts of the "discharge only" rather than the "proposed activity as a whole." This may be problematic because where the request for water quality certification arises under a 404 permit application, the impacts of placement of dredged or fill material in a water of the United States may have impacts on water quality beyond a discharge, such as filling in headwater stream reaches, and the inability of the Cabinet to review and certify compliance on those impacts may slow the process and lead to greater scrutiny of those other impacts by the federal agencies.