Continuing Authority for Permits Issues Pursuant to Section 644.051.2 RSMo - PUB3005

The Missouri Clean Water Law makes it unlawful for “any person to operate, use or maintain any water contaminant or point source in this state that is subject to [requirements of the Clean Water Law and not exempted] unless such person holds an operating permit from the commission.” Section 644.051.2, RSMo. The Missouri Clean Water Commission’s corresponding regulation, 10 CSR 20-6.010(1), requires “all persons who build, erect, alter, replace, operate, use, or maintain existing point sources, or intend these actions for a proposed point source, water contaminant sources, or wastewater treatment facilities” to apply for a permit, or qualify for a permit exemption. As defined by Section 644.016(15), RSMo, a “person” can be “any individual, partnership, co-partnership, firm, company, public or private corporation, association, joint stock company, trust, estate, political subdivision, or any agency, board, department, or bureau of the state or federal government, or any other legal entity which is recognized by law as the subject of rights and duties.” 

Additionally, 10 CSR 20-6.010(2) provides that all applications for construction and operating permits must identify the person “that is the owner of, operator of, or area-wide management authority for” the water contaminant source, point source, wastewater treatment facility, or sewer collection system, and that this person “shall be designated as the continuing authority and shall sign the application.” And 10 CSR 20-6.010(7)(A) states that operating permits “shall be issued to the owner and continuing authority.” The owner and continuing authority can be the same person, but do not have to be.

Water Protection Program permits issued pursuant to the Missouri Clean Water Law and regulations must be issued to both the owner and continuing authority, which can be the same or different persons.

The “owner” is the owner of the permit, i.e., the owner of the regulated activity or discharge. “Owner” does not necessarily mean the owner of the real property where the activity or discharge is occurring. See, e.g., State ex rel. Koster v. Schwartz, 461 S.W.3d 885 (Mo. App. S.D. 2015); Scott Tie Co. v. Mo. Clean Water Comm’n, 972 S.W.2d 580 (Mo. App. S.D. 1998). 

The “Continuing Authority” is the entity legally responsible for compliance with the permit. The Continuing Authority can be the owner, the operator or an area-wide management authority. The Continuing Authority should be a relatively permanent entity responsible for the ongoing operation, maintenance and modernization, when needed, of the permitted facility or activity. As the term implies, the Continuing Authority should provide continuous, stable oversight, as opposed to an entity or person contractually hired by the permittee to sample, operate or maintain the system for a limited time period, and who is not otherwise directly responsible for compliance.

But who needs to apply for the permit?

Every construction and operating permit application must identify, and be signed by the “person,” that is, the owner of, operator of, or area-wide management authority for a waste contaminant source, point source, wastewater treatment facility, sewer collection system or regulated activity. This person or continuing authority is responsible for compliance with all permit conditions.  

Who can be an Owner or Continuing Authority? 

• An individual or group of individuals identified by name
• A corporation, company, business, partnership, co-partnership, limited liability company, or nonprofit company
• A municipality or other political subdivision
• A public sewer district
• A sewer company registered with the Missouri Public Service Commission, once the certificate of convenience and necessity is issued
• A government entity that has area-wide management authority pursuant to Section 208(C)1 of the Federal Clean Water Act
• A person or group of persons contractually obligated to provide wastewater  collection and treatment services for an indefinite period of time
• An association of property owners served by a wastewater treatment facility, meeting the requirements of 10 CSR 20-6.010(2)(B)5 (i.e. a Home Owners’ Association)

Levels of Continuing Authority

10 CSR 20-6.010(2)(B) establishes a hierarchy of five levels of continuing authorities, listed in preferential order. These levels are typically only applicable to domestic wastewater treatment facilities, but could apply to other types of facilities as well. 

In general, permit applicants cannot normally claim a lower-preference continuing authority if a higher level authority is available. See 10 CSR 20-6.010(2)(C). Therefore, an applicant that is a Level 3, 4, or 5 continuing authority can only qualify as the continuing authority by demonstrating that Level 1 and 2 authorities are either not available, do not have jurisdiction, are forbidden by state statute or local ordinance from providing service to the person, or that the lower preference continuing authority has met one of the requirements listed in 10 CSR 20-6.010(2)(C)1.–7. 

The five levels are described below, as established by 10 CSR 20-6.010(2)(B):

1. Level 1 Authority — A municipality or public sewer district or governmental entity which has been designated as the area-wide management authority in accordance with section 208(c)(1) of the Federal Clean Water Act. These are the highest level of authority in Missouri and must be designated by the governor in accordance with federal law.
2. Level 2 Authority — A municipality, public sewer district, or governmental entity which currently provides wastewater collection and/or treatment services on a regional or watershed basis as outlined in 10 CSR 20-6.010(2)(F). These publically owned treatment plants, public sewer districts, and sewer districts regulated by the Public Service Commission (PSC) are the second highest level of authority and were designated by the Clean Water Commission.
3. Level 3 Authority — A municipality, public sewer district, or sewer company regulated by the PSC, other than one that qualifies as a Level 2 Authority. A permit cannot be issued to a PSC-regulated sewer company until it has obtained a certificate of convenience and necessity from the PSC. Most publicly owned treatment plants in Missouri are a Level 3 Authority.
4. Level 4 Authority — Any person, industry, or group of persons contractually obligated to collectively act as a wastewater collection and treatment service, or non-profit company organized pursuant to Section 393.825, RSMo, with complete control of and responsibility for the water contaminant source, point source, or wastewater treatment system.
5. Level 5 Authority — An association of property owners served by the wastewater treatment facility, if the association is registered with the Missouri Secretary of State (SOS), owns the facility, has easements for all sewers, and has covenants with the property owners that meet the minimum requirements of 10 CSR 20-6.010(2)(F)5.C.

Business names

If the continuing authority is not an individual(s), government, or otherwise exempt from SOS registration, then any business name listed as an owner or continuing authority on a permit application must be listed exactly as it appears on the SOS’s webpage.

Are the laws and regulations the same for CAFOs?

No, concentrated animal feeding operations (CAFOs) are regulated by both Chapter 640 and Chapter 644, RSMo. The owner or operator of the CAFO must apply for the CAFO permit and ensure compliance with the laws, regulations and permit conditions applicable to their CAFO facility. Therefore, the continuing authority for a CAFO permit will typically be the CAFO owner or operator.

Who can sign the application?

Once the owner and continuing authority are established, the parties must determine which individual will actually sign the permit application, certifying its accuracy. All applications must be signed as follows:

• If for a corporation, by an officer having responsibility for overall operations of the facility or activity or for environmental matters
• If for a partnership or sole proprietorship, by a general partner or proprietor
• If for a political subdivision or publicly owned facility, by a principal executive officer or environmental manager for the facility
• Individuals must sign for themselves, but groups of individuals may select a single individual as signatory on behalf of the group

My corporation is located and registered in another state. Can my corporation be the continuing authority?

Yes, but you may still need to register with the SOS as a foreign business operating in Missouri. Contact the SOS for assistance. You may be asked to submit documentation of the legal business registration issued by another state. Also, private corporations not incorporated pursuant to the laws of Missouri must be represented by a Missouri registered agent prior to permit issuance. 10 CSR 20-6.010(2)(E).

What if I dissolve my business, corporation, or company or let my business registration lapse?

In the event that the currently permitted continuing authority becomes invalid, inactive, or is otherwise no longer registered through the SOS, the permittee must promptly inform the Department and provide a new, valid owner and/or continuing authority. This change in ownership or continuing authority can be accomplished by completing, signing, and submitting an Application for Transfer of Operating Permit - MO 780-1517.

Why does my permit contain condition(s) about connecting to a higher level continuing authority?

10 CSR 20-6.010(8)(A)9. requires operating permits to contain a special condition when a Level 1, 2, or 3 authority is expected to be available for connection, stating that the permittee shall cease discharge by connecting to the higher level continuing authority facility within the timeframe allotted by the higher level continuing authority’s notice of availability. This rule and permit language promotes long term planning and regionalization of treatment plants, where treatment often becomes more affordable at the larger facilities.

For more information, please contact the Water Pollution Control Branch’s Operating Permits section at 573-522-4502 or cleanwaterpermits@dnr.mo.gov.