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Construction Sites and Land Clearance Activities Subject to New Stormwater Discharge Requirements in Kansas and Missouri

Construction companies, contractors, developers and the like take heed: both the Kansas Department of Health and Environment (KDHE) and the Missouri Department of Natural Resources (MDNR) earlier this year issued new erosion and sediment control requirements associated with stormwater discharges that will impact your operations in Kansas and Missouri. As a result, companies will need to actively manage operations to prevent and minimize stormwater discharges and businesses cannot simply rely on the fact that they have a permit in the file as a means for compliance.

Those involved in construction or land clearing activities (e.g., clearing, grubbing, excavating, grading, etc.) that disturb one or more acres must seek coverage under each State’s respective Construction Stormwater Permit. Notably, even if the size of individually developed plots is less than one acre, companies run the risk of triggering permit requirements for larger common plans of development or sale where the cumulative total of land disturbance is one or more acre.

The recently issued KDHE and MDNR Construction Stormwater Permits integrate the U.S. EPA’s non-numeric effluent limitations set forth in 40 CFR Part 450. As a result, site owners or operators must now:

  • Design, install, and maintain effective erosion and sediment control;
  • Control stormwater volume and velocity to minimize soil erosion;
  • Control peak flowrates to minimize erosion;
  • Minimize disturbance of steep slopes and sediment discharge;
  • Provide and maintain natural buffers near surface waters;
  • Direct runoff to vegetated areas; and
  • Minimize soil compaction and preserve topsoil.

These effluent limitations must be integrated into detailed site-specific Stormwater Pollution Prevention Plans (SWPPP or SWP2) along with the incorporation of Best Management Practices (BMP) for erosion and sediment control. The most controversial aspect of EPA’s proposal – the application of numeric limits for turbidity – is not part of either permit, so far. These Numeric Turbidity Limits, however, remain in development and will surely have dramatic impacts once finalized, including requirements for on-site sampling and monitoring of stormwater.

While KDHE’s and MDNR’s new Construction Stormwater Permits reflect many similarities (e.g., dewatering activities are now prohibited unless managed by appropriate controls), significant differences exist between the two permits. Consequently, companies need to be particularly attuned to the differences to avoid non-compliance, especially those in the Kansas City region that work in both states.

KDHE, for example, now requires a site inspection every 14 calendar days and within 24 hours of a one-half inch rainfall event. MDNR, on the other hand, requires site inspections weekly and within 48 hours if a rainfall event causes stormwater runoff to occur on site. Perhaps the most notable difference is the fact that permit holders under the former general permit in Kansas do not need to apply for coverage unless the project will extend past September 2013, as KDHE as integrated an 18 month transition period into the permit. MDNR, by contrast, has no such transition period and companies are urged to immediately seek coverage if they have not done so already.

If you have questions about the newly issued KDHE or MDNR Construction Stormwater Permits, the similarities or differences between them, and how to structure your operations to ensure compliance, please contact Andrew Brought at 816-474-8100, or any other lawyer in the Environmental Practice Group.