Stites & Harbison, PLLC

Lauran M. Sturm is an Associate in
the Louisville office where she is a
Member of the Environmental,
Natural Resources & Energy Service
Group. She is a LEED Accredited
Professional.

The Kentucky Division of Water (KDOW) recently reissued its KPDES General Permit for Stormwater Discharges from Construction Activities (KYR10). Like its 2002 predecessor, the reissued KYR10 (effective August 1, 2009) applies to all construction projects affecting one or more acres and having the potential to discharge stormwater to waters of the Commonwealth. Notably, however, certain provisions in the reissued permit impose greater burdens on the operator/permittee and will likely require more collaboration between general contractors and property owners. Some of the significant changes include:

• Submission of a Notice of Intent Specifically for Construction Activities (NOI-SWCA) — to apply for coverage under the reissued permit, the operator of the construction project (usually the general contractor) must submit an NOI-SWCA detailing the size and scope of the construction activities at least 7 days (electronic submissions) or 30 days (paper submissions) prior to commencing construction. The NOI-SWCA calls for information that may require greater communication with the site owner, such as:
  • the names and designated uses of any receiving waters;
  • the anticipated number and locations of discharge points;
  • identification of planned construction in or along a water body; and
  • a topographic map showing project boundaries, areas to be disturbed, and the locations of anticipated discharge points and receiving waters.
• Implementation of a Stormwater Prevention Plan (SWPP) — the operator must develop a SWPP and implement it at the commencement of construction. The SWPP should include erosion prevention measures and sediment control measures which are installed and maintained to minimize discharges of sediments and other pollutants from a 2-year, 24-hour storm event.
• Maintenance of Buffer for High Quality/Impaired Waters — the operator must maintain a 25-foot buffer zone between any disturbance and all edges of High Quality or Impaired Waters (where the impairment is not related to the construction). For receiving waters impaired by sediment, the required buffer zone increases to 50 feet. If the operator cannot maintain the required buffer zone, it must describe an adequately protective alternative in its SWPP.
• Exclusion from Coverage for Discharges to Cold Water Aquatic Habitat Waters, Exceptional Waters, Outstanding National/State Resource Waters, or certain Impaired Waters — the operator of a construction project involving discharges to any of these water bodies must apply for an individual permit.
• Termination of Policy for Automatic Coverage within 48 Hours of NOI Submission — KDOW will now notify an operator of permit coverage within 7 days (electronic submissions) or 30 days (paper submissions) of receiving an NOI.