​​​​​​​​​Kentucky Department for Environmental Protection Senate Bill 89 Interim Guidance
The Cabinet is continuing to evaluate process and program modifications in response to the change in definition of the “Waters of the Commonwealth" resulting from the enactment of Senate Bill 89 as passed in the 2025 Regular Session of the Kentucky General Assembly. The Cabinet will continue to update this webpage to provide the public and permittees with the most up-to-date guidance as it is developed. The guidance posted on this website reflects the Cabinet's understanding of the laws and regulations under its purview, and is not intended to modify, expand, or limit any existing statute or regulation.
Please check this page regularly for updates pertaining to Kentucky Senate Bill 89.
All discharges to waters of the Commonwealth require a permit through the Kentucky Pollutant Discharge Elimination System (KPDES). Senate Bill 89 was passed during the 2025 regular session of the Kentucky General Assembly amending the KRS 224.1-010 definition of “waters of the Commonwealth" as follows:
"Water" or "waters of the Commonwealth" means and includes:
(a) Navigable waters, as defined in 33 U.S.C. sec. 1362;
(b) Sinkholes with open throat drains;
1. Naturally occurring artesian or phreatic springs, as well as any other spring used as a source of domestic water supply; and
(d) Wellhead protection areas;
that are situated wholly or partly within or bordering upon the Commonwealth or within its jurisdiction.
The agency will not be conducting a comprehensive independent review of all active KPDES permits to determine whether they are impacted by Senate Bill 89.
- The amended definition of “waters of the Commonwealth" continues to require a KPDES permit for any discharge into navigable waters, which are defined in 33 USC sec. 1362 as "waters of the United States" (see 40 C.F.R. 120.2); or into or onto sensitive features listed in subsections (b) through (d) above. It should also be noted that a KPDES permit is required for any discharges that impact source waters flowing through those features that are included in (c).
Questions related to this Water Advisory Memorandum, Senate Bill 89 – Wellhead Protection Areas, Open Throated Sinkholes, and Natural Springs and/or coordination should be directed to the Commissioner of the Department for Environmental Protection, Anthony R. Hatton, via email at Tony.Hatton@ky.gov.
All discharges to waters of the Commonwealth require a permit through the Kentucky Pollutant Discharge Elimination System (KPDES). Senate Bill 89 was passed during the 2025 regular session of the Kentucky General Assembly amending the KRS 224.1-010 definition of “waters of the Commonwealth" as follows:
"Water" or "waters of the Commonwealth" means and includes:
(a) Navigable waters, as defined in 33 U.S.C. sec. 1362;
(b) Sinkholes with open throat drains;
1. Naturally occurring artesian or phreatic springs, as well as any other spring used as a source of domestic water supply; and
(d) Wellhead protection areas;
that are situated wholly or partly within or bordering upon the Commonwealth or within its jurisdiction.
The amended definition of “waters of the Commonwealth" (WOTC) continues to require a KPDES permit for any discharge impacting navigable waters, which are defined in 33 USC sec. 1362 as "waters of the United States" (see 40 C.F.R. 120.2); or sensitive features listed in subsections (b) through (d) above.
The agency will not be conducting a comprehensive independent review of all active KPDES permits to determine whether a functional equivalent analysis may be required. If a permittee has an active KPDES permit or intends to submit a permit application in which a functional equivalent analysis may be required, and would like agency review, the permittee must submit a request for review in writing to the cabinet.
The informational bullets in this Water Advisory Memorandum (WAM) should be considered when an applicant is amending a KPDES permit.
- A point source is defined as “any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feed operation, or vessel or other floating craft." (40 CFR 122.2)
- On April 23, 2020, the United States Supreme Court ruled, in County of Maui, Hawaii v. Hawaii Wildlife Fund et al., that the Clean Water Act (CWA) requires a discharge permit when a point source adds pollutants to navigable waters through groundwater if this addition of pollutants is “the functional equivalent of a direct discharge" from the source into those waters. The Maui decision applies to discharges that originate from point sources. This analysis is not intended to be used for pollution that originates from nonpoint sources.
- This WAM is intended to clarify that the Maui decision applies to point source discharges to groundwater, among other things, that discharge to a Water of the Commonwealth.
- Under the Clean Water Act, compliance with a KPDES discharge permit, shields the permit holder from both agency and citizen suit enforcement action. However, discharges or releases of pollutants into waters or onto land without a permit may lead to liability under state law (KRS Chapter 224) and/or the Clean Water Act. ​
Questions related to this Water Advisory Memorandum, Senate Bill 89 – Functional Equivalent Analyses and/or coordination should be directed to the Commissioner of the Department for Environmental Protection, Anthony R. Hatton, via email at Tony.Hatton@ky.gov.
All discharges to waters of the Commonwealth require a permit through the Kentucky Pollutant Discharge Elimination System (KPDES). Senate Bill 89 was passed during the 2025 regular session of the Kentucky General Assembly amending the KRS 224.1-010 definition of “waters of the Commonwealth" as follows:
"Water" or "waters of the Commonwealth" means and includes:
(a) Navigable waters, as defined in 33 U.S.C. sec. 1362;
(b) Sinkholes with open throat drains;
(c) Naturally occurring artesian or phreatic springs, as well as any other spring used as a source of domestic water supply; and
(d) Wellhead protection areas;
that are situated wholly or partly within or bordering upon the Commonwealth or within its jurisdiction
The amended definition of “waters of the Commonwealth" continues to require a KPDES permit for any discharge impacting navigable waters which are defined in 33 USC sec. 1362 as "waters of the United States" (see 40 C.F.R. 120.2); and sensitive features listed in subsections (b) through (d) above.
The agency will not be conducting a comprehensive independent review of all active KPDES permits to determine whether they are impacted by Senate Bill 89.
If a permittee has an active KPDES permit that may be subject to modification under the new definition and would like agency review, the permittee must submit a request in writing to the cabinet requesting a permit review. The request must identify the specific aspects (including outfalls) of the permit to be evaluated and provide sufficient detail to allow meaningful review. The Cabinet may require additional information for review and an on-site inspection could be required. Due to the new requirements from Senate Bill 89, permit approvals, including renewals, may take longer to complete than in the past. The Kentucky legislature did not provide the additional funding identified by the Cabinet to augment the permitting staff.
Senate Bill 89 did not alter the Cabinet's responsibility or authority to protect and enhance Kentucky's environment or to safeguard public health. The Cabinet will continue to enforce existing law, including, but not limited to, releases under KRS 224.1-400, KRS 224.1-405, and KRS 224 Subchapters 40 through 60, as well as laws related to floodplains, resource protection, and stream restoration and mitigation pursuant to KRS 151.
Questions related to this Advisory Memorandum, Senate Bill 89 Impacts on Permits and/or coordination should be directed to the Commissioner of the Department for Environmental Protection, Anthony R. Hatton, via email at Tony.Hatton@ky.gov.​
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