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Rule 5 (327 IAC 15-5) [PDF] is a general permit, and as such it is not "issued" in the same manner as an individual NPDES permit would be issued. (To obtain an individual permit the applicant submits an application form, IDEM drafts site specific permit conditions and a public comment period is held to solicit proposed modifications to that draft, after which IDEM may revise its draft before issuing a finalized permit.) Rather, Rule 5 was "conditionally issued" to all future "project site owners" at the time that the rule was adopted by the Indiana Water Pollution Control Board. The permit conditions within Rule 5 apply universally to all "project site owners" who are eligible to operate under the rule, and opt to do so.
As with any general NPDES permit, there is no 30-day public comment period because the public already had the opportunity to comment on the permit conditions in the Rule during the rulemaking process that lead up to the adoption of Rule 5. Hence, the "application" for a Rule 5 permit is called a Notice of Intent, or NOI, because the "applicant" or "project site owner" is essentially submitting a NOI letter notifying IDEM of his or her intent to operate their proposed construction project in a manner consistent with the "permit conditions" established by Rule 5. The "project site owner" also notifies the public - in a newspaper - of his or her intent to operate under Rule 5.
Any "project site owner" engaged in construction-related activities (meaning any manmade change of the land surface, including removing vegetative cover that exposes the underlying soil, excavating, filling, transporting, and grading) that disturb one (1) or more acres of land may be required to obtain a "Rule 5" storm water run-off permit under 327 IAC 15-5 (scroll down to page 10), from the IDEM Office of Water Quality.
A "project site owner" is any developer or other person(s) who has financial and operational control over construction activities and project plans at a construction site, including the ability to modify those plans.
The project site owner must submit a Notice of Intent to operate under Rule 5, and also must comply with all the procedures in, and requirements of, Rule 5. Compliance with Rule 5 general construction storm water permitting conditions will reduce pollutants - principally sediment as a result of soil erosion - in storm water discharges into surface waters of the state.
The purpose of a Rule 5 general permit is to establish requirements to protect waters of the state from adverse affects from stormwater discharges from construction activities.
IDEM does reserve the right to require an individual NPDES (National Pollutant Discharge Elimination System) permit rather than a Rule 5 general permit. If the agency determines the storm water run-off from a project could impair the water quality of the receiving stream, identified as a outstanding state resource water (327 IAC 2-1-2(3)) exceptional use waters (327 IAC 2-1-11). Permittees will be notified by IDEM if they need to apply for an individual storm water discharge permit.
Visit the U.S. EPA's Web site for more information regarding U.S. EPA's implementation of Phase I and Phase II storm water run-off requirements.
Until recently a Rule 5 permit was required for all construction activities that disturbed more than five (5) acres of soil. The five (5) acre threshold was consistent with Phase I of the federal storm water run-off rules promulgated by the U.S. EPA in November 1990. Under Phase II federal storm water run-off requirements, all soil disturbances of one (1) or more acres require a permit. All states with permitting authority were to have Phase II federal requirements in place by March 2003. Hence, the Indiana Water Pollution Control Board (WPCB) has promulgated new Rule 5 language that is consistent with Phase II federal storm water requirements. The new Phase II, Rule 5 language took effect November 26, 2003. U.S. EPA was aware of the timeframe within which the WPCB was revising Rule 5, and it approved of the finalized rule.
Construction sites subject to Phase II storm water regulation that are found to be operating without a valid Rule 5 permit (or individual NPDES permit, if required) in place will be subject to enforcement action and any subsequent fines.
On the other hand, if you obtained a Rule 5 permit more than five (5) years ago and have completed that project, but never submitted a Notice of Termination (NOT) to IDEM confirming that you completed construction under your permit, you are required to submit a Notice of Termination. IDEM will be sending notifications to individual fail to submit required documents.
The following soil disturbing activities do not require a general, Rule 5, or individual NPDES construction-related storm water discharge permit:
A single family residential dwelling that is not part of a larger common plan of development or sale is excluded from filing a construction plan and a notice of intent if land disturbance is less than 5 acres.
Land disturbance for single family residential lots is limited to those activities associated with construction of a dwelling/garage, driveways, septic system, and others essential to the residence. Land disturbing activities that are not considered essential include, but are not limited to ponds, out buildings, etc. These types of activities will require submittal of a construction plan and permit based on the one acre land disturbance threshold.
It was determined that these stand alone projects are typically not a significant threat to water quality or the discharge of pollutants. It is important to note that these projects are not exempt from the rule, but only from filing the construction plan and the Notice of Intent. The individual lot operator/owner must comply with provisions of the rule. These include 327 IAC 15-5-7(b) (1-5), 15-5-7(b) (10), 15-5-7(b) (17), 15-5-7(b) (19), and 15-5-7(b) (20). These citations can be located at 327 IAC 15-5-7 (Scroll to page 19).
A "larger common plan of development or sale" means a plan, undertaken by a single project site owner or a group of project site owners acting in concert, to offer lots for sale or lease; where such land is contiguous, or is known, designated, purchased or advertised as a common unit or by a common name, such land shall be presumed as being offered for sale or lease as part of a larger common plan. The term also includes phased or other construction activity by a single entity for its own use.
For example, if a developer buys a 20 acre lot and builds roads, installs pipes and runs electricity with the intention of constructing homes or other structures sometime in the near future, this would be considered a common plan of development or sale. If the land is parceled off or sold, and construction occurs on plots by separate, independent builders, this activity still would be subject to the storm water permitting requirement.
Although the project site owners are responsible for implementing the Rule 5 permit until all land disturbing activities are completed, the project site owner of a larger common plan of development or sale may be eligible for early release from the Rule 5 permit under some circumstances.* Nonetheless, IDEM may require a permit for soil disturbances of less than one (1) acre if it has concerns that the activity could significantly impair water quality. IDEM will notify the affected project site owner, if this is a concern.
For lots within a larger permitted site that are less than one acre, the individual lot operator/builder (residential lot) or the Project Site Owner (commercial, industrial, or multi-family lot) is not required to submit his/her own Notice of Intent or plan and must comply with the provisions and requirements of the plan developed by the Project Site Owner and Section 7.5 of the Rule.
For lots within a larger permitted site that are one acre or more, the individual lot operator/builder (residential lot) or the Project Site Owner (commercial, industrial, or multi-family lot) may be required to file for a separate permit.
The Rule assumes that land disturbance associated with a one acre or more single family residential lot will only disturb .5 acres. Therefore, the builder/lot operator on a single-family residential lot within a permitted project site does not need to submit a separate construction plan or a Notice of Intent. However, if during a site inspection it is determined that land disturbance has exceeded one acre and the operations occurring at the site are out of compliance, the agency representative may require the individual lot owner to file a plan and a Notice of Intent. This decision will be based on the conditions and compliance level associated with the individual lot in question.
For lots that are one acre or more, land disturbance is pre-determined to be one acre or more. Therefore, the Project Site Owner of a commercial, industrial, or multi-family lot of one acre or more must always file their own construction plan and Notice of Intent.
Requirements for plan development and content are contained within 327 IAC 15-5-6.5 (Scroll to Page 10) and in the guidance document entitled Guidance for Construction Plan/Storm Water Pollution Plan Development. The guidance document not only includes the elements required by the rule, but a brief description of each element and what is expected to be in the plan.
The Indiana Storm Water Quality Manual is also available to assist with the development of the construction plan and the selection of storm water quality measures.
Note: If this project is within the jurisdiction of an Municipal Separate Storm Sewer Systems (MS4) with a certified construction program, additional requirements that are above and beyond the requirements specified in 327 IAC 15-5 may be required as part of the plan. These requirements will be typically based on an MS4 ordinance and may vary from one MS4 to another.
Submit the construction plan to the plan review authority. The plan review authority may vary based on local agreements with IDEM, SWCDs and the existence of an MS4 community.
Note: MS4s do not directly administer 327 IAC 15-5, but are required to establish a local program that meets or exceeds the requirements of Rule 5. The local program must include provisions for plan review, site inspection, and enforcement procedures.
Is my project within an MS4 Entity with a Certified Construction Program?
IDEM, Office of Water Quality
Rule 5 Storm Water Program
100 North Senate Avenue, MC 65-42
Indianapolis, Indiana 46204-2215
Once the plan has been submitted, the permittee will receive a determination from the plan review entity regarding the status of the plan. The review authority (project regulated under Rule 5) has up to 28 days from the date of submittal to review the plan. MS4s are not subject to the 28-day review period and have their own procedures for the submittal and review of plans.
Submit a Rule 5 NOI Form (available on the IDEM Forms page) to IDEM. An NOI submittal to IDEM is required for all projects meeting the applicability requirements of 327 IAC 15-5 regardless of whether they are within or outside a designated MS4 entity. A copy of the NOI letter should also be submitted to the plan review authority. The NOI letter must be accompanied by these three (3) things:
The NOI letter must be signed by the responsible project site owner or their duly authorized representative and sent, with the accompanying documents and the fee, to:
Indiana Department of Environmental Management
Office of Water Quality
100 North Senate Avenue
Indianapolis, IN 46204-2215
The project site owner must notify IDEM and the review authority of the actual start date within 48 hours of starting land disturbing activities. Notification to IDEM should be directed via phone or e-mail (e-mail preferred) to the IDEM Permits Coordinator. Construction activities may not begin prior to verification that the plan meets the minimum requirements of the Rule and submittal of the Notice of Intent letter. If the projected date of land disturbance is accurate on the Notice of Intent, the Notice of Intent will serve as official notification to IDEM.
The construction plan must be implemented before, during, and after construction activities occur.
All projects are required to be terminated upon completion. A NOT Form (available on the IDEM Forms page) must be filed provided the project site is eligible.
IDEM, Office of Water Quality
Rule 5 Storm Water Program
100 North Senate Avenue, MC 65-42
Indianapolis, Indiana 46204-2215
Like any other permit-by-rule, when an applicant submits a Notice of Intent (NOI) for Rule 5, they are certifying that they will comply with all the terms and conditions specified in the rule.
As mentioned above, the project site owner should plan to submit their construction plan, which should include a completed storm water pollution prevention plan, at least 30 days before they expect to begin construction. Since the construction plan could require modification, it would be best to submit it even earlier.
IDEM’s Storm Water Specialist staff conducts compliance evaluations of project sites. They are authorized to inspect project sites at any reasonable time. The project site owner should be prepared to provide construction plans (including storm water pollution prevention plans) and self-monitoring reports within forty-eight (48) hours of an inspector request.
Rule 5 Construction Storm Water Run-off Permits must be renewed after five years. This five (5) year period begins when construction start-up actually begins on the permitted site. Renewal requires the submittal of a new NOI ninety (90) days prior to the expiration of the existing permit. Rule 5 permits are not transferable per 327 IAC 15-2-8(b).
The IDEM OWQ Wetland and Storm Water Section also has developed some guidance materials, including a step-by-step process summary that compliment the information on this page, and will be particularly helpful to persons who may need a Rule 5 permit.
Questions may be directed to IDEM Rule 5 staff at (800) 451-6027, ext. 3-1864.