As discussed in prior issues of the Environmental Letter, EPA approved Kentucky’s revised water quality standard for nutrients and the chronic water quality aquatic life criterion for selenium in November 2013. The revised water quality standards for nutrients and selenium were adopted pursuant to Kentucky’s Triennial Review of Water Quality Standards.

The chronic water quality for selenium is based upon selenium in whole fish tissue and fish egg/ovary tissue. The proposed values were derived by the Division of Water (DOW) based upon species native or naturalized to Kentucky waters.

EPA approved DOW’s revised definition of “eutrophication” at 401 KAR 10:031 Section 1(30). DOW’s revisions clarify that its nutrient standard, consistent with its long-term interpretation, prevents and prohibits nitrogen and phosphorous in discharges that would cause or contribute to a eutrophication problem.

In February 2014 several environmental interest groups sued EPA in the United States District Court for the Western District of Kentucky to challenge EPA’s approval of Kentucky’s revised water quality standards for selenium and nutrients. The plaintiffs’ claim that EPA’s approval of the standard was arbitrary and capricious because: (1) EPA improperly relied upon Kentucky’s stated interpretation of the revised provisions set forth in correspondence during the Triennial Review period; (2) the revised criteria failed to protect “fishless streams”; (3) the selenium standards fails to protect commercially and recreationally important species; and (4) the revised nutrient standard is insufficient to prevent eutrophication from occurring. On July 16, 2014, plaintiffs amended their Complaint to allege that EPA’s approval of the nutrient and selenium standards violates the Endangered Species Act because EPA allegedly failed to properly consult with the U.S. Fish and Wildlife Service before approving the standards.

The Commonwealth of Kentucky, Kentucky Chamber of Commerce, and Kentucky Coal Association have intervened in the litigation to support EPA’s approval of the standards. It is anticipated that the plaintiffs’ challenge to EPA’s approval of the revised water quality standards will be decided based upon the administrative record following briefing of the issues. Based upon the parties’ proposed briefing schedules, the matter should be submitted for a decision by the United States District Court in early 2015.

The outcome of the litigation is of significant importance to industrial facilities and municipalities that discharge effluent containing nutrients and selenium. As discussed elsewhere in this issue of the Environmental Letter, the recent KPDES General Permit for coal mining operations includes limitations on the discharge of selenium based upon the new standards. Similarly, municipal wastewater treatment plants and various types of construction activity can generate wastewater streams that contain phosphorus and nitrogen that are subject to the revised nutrient standard.