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Stormwater Penalty Exceeds $475,000 for Three Road Construction Sites

The Kansas Department of Transportation (KDOT) has entered into a federal Consent Decree with the Environmental Protection Agency (EPA) and the U.S. Department of Justice to resolve construction stormwater violations under the Clean Water Act. The Consent Decree, published in the Federal Register on Monday, July 8, 2013, and lodged in federal court on July 1, requires KDOT to pay a civil penalty of $477,500.

According to EPA’s Press Release, “[v]iolations included the failure to install or implement adequate stormwater control measures, including the failure to timely stabilize disturbed soils, the failure to properly maintain stormwater controls, the failure to develop an adequate stormwater pollution prevention plan and update the plan as appropriate, and the failure to maintain the plan and other records on site.”

The Consent Decree also requires KDOT to undertake substantial injunctive “Compliance Requirements” including:

  • Designating a statewide Stormwater Compliance Manager;
  • Identifying an Area Engineer for every project;
  • Selecting an Environmental Inspector for every site; and
  • Performing third-party oversight inspections at environmentally sensitive areas in Kansas, which require a consultant or KDOT inspector not affiliated with the project to conduct additional inspections.

The Consent Decree is subject to a 30-day notice and comment period from the July 8 publish date in the Federal Register.

EPA’s and DOJ’s latest action on stormwater reflects the growing emphasis and focus on stormwater discharges by regulatory agencies. Two stormwater cases were argued before the U.S. Supreme Court in December 2012, and a federal court in Virginia recently held that the EPA cannot regulate stormwater flow as a “surrogate” to control sediment runoff.

For persons interested in learning more, Spencer Fane’s Environmental Practice Group (with presenters from the firm’s Denver, Kansas City, and St. Louis offices) hosted a complimentary 60-minute webinar on February 12, 2013, entitled “Navigating Uncertain Waters: Regulatory Developments in Clean Water Act Enforcement, Stormwater Permitting & Fracking.” CLICK HERE TO LISTEN TO THE WEBINAR.