Can I submit an NOI and plan that covers a 100 acre site and only disturbs 20 acres?
Yes, a plan can be submitted for this type of project. The extent of land disturbance cannot be altered beyond the 20 acres unless the original plan included the additional land disturbance and appropriate storm water measures. We do have flexibility; however, the project cannot continue expanding outside the scope of the original plan. Subsequent land disturbances that total more than an additional one acre must be considered a new project and have a new plan and NOI submitted. The original plan shows 80 acres undisturbed.
A developer purchases a farm with the intent to develop the property, however the land sits idle for several years before development occurs. Does the developer need to comply with Rule 5 upon purchase of the property?
The Rule specifically targets land disturbance and construction activity. As long as the developer does not initiate an activity defined as land disturbance (Rule 5) he/she does not need to file for Rule 5 coverage. However, the developer should plan in advance to submit all required information related to Rule 5 prior to land disturbance.
Compliance and Enforcement
If builders within my residential development are not installing and maintaining appropriate erosion and sediment control measures on individual lots, what is my responsibility as a project site owner/developer?
The first course of action is to work with the builders to educate them on their responsibility for erosion and sediment control. The builders are operating on the site for which you have a permit and should be implementing appropriate erosion and sediment control measures as specified in the Construction Plan. In addition, Rule 5 in Section 7.5 identifies requirements for builders operating on individual sites.
If you have made a good faith effort to resolve issues and are in compliance with the overall site IDEM has the authority to take action against other operating within the project site. This is explained in Section 327 IAC 15-5-10 (c) of the rule which states “The department shall investigate potential violations of this rule to determine which person may be responsible for the violation. The department shall, if appropriate, consider public records of ownership, building permits issued by local units of government, and other relevant information, which may include site inspections, soil erosion control plans, notices of intent, and other information related to the specific facts and circumstances of the potential violation. Any person causing or contributing to a violation of any provisions of this rule shall be subject to enforcement and penalty under IC 13-14-10, IC 13-15-7, and IC 13-30”.
Construction Plan Development and Submittal
Rule 5 refers to a “Construction Plan”. At one time the Rule made reference to an erosion and sediment control plan. Is the Construction Plan the same as the erosion and sediment control plan?
Rule 5 was revised in 2003. The 2003 Rule contains new terminology and requirements. The Rule specifically requires that a set of construction plans are developed for the project site. The Construction Plan includes general site information, project layout, grading plans, drainage plans, and the Storm Water Pollution Prevention Plan (SWPPP), to name a few. The SWPPP should include provisions to control erosion and reduce sedimentation and other pollutants associated with construction activities. The SWPPP also includes provisions to reduce the discharge of pollutants associated with the inherent land use of the project once it is complete (Post-Construction). The post-construction requirement is a new provision in Rule 5 (2003) and one of the reasons that an erosion and sediment control plan is now referred to as a SWPPP.
If my project is eligible for coverage under Rule 5, where do I send my construction plan for review?
The construction plans (Rule 5) must be sent to either the local Soil and Water Conservation District or the local MS4. An MS4 that has met the requirements of the Construction Minimum Control Measure (MCM) and submitted a certification to IDEM would receive the plans. If the MS4 has not met the requirements for the Construction MCM or the project is in a non MS4 area the plans would be submitted to the Soil and water Conservation District in the county where the land disturbance will occur.
Implementation of the Plan
Why is surface stabilization a requirement of Rule 5?
The intent of Rule 5 is to minimize adverse impacts to waters of the state. With respect to erosion and sedimentation, this can best be accomplished by minimizing the exposure of bare soil to the erosive effects of precipitation and run-off. Temporary and permanent surface stabilization are considered the most effective means of minimizing erosion. Stabilizing the soil surface and reducing the potential for erosion is considered the most effective form of sediment control.
Do self-monitoring inspections have to be done the same day of every week?
No, the inspections do not have to be conducted on the same day of each week. The rule requires that an inspection by the developer or his/her representative is made once a week and following each measurable rainfall (.5 inches or more).
Why are developers required to conduct site inspections of their own projects?
The inspections are required to manage project site activities and should focus on the implementation and maintenance of storm water quality measures. The purpose of the inspection is to assess site conditions and effectiveness of existing storm water quality measures and to identify those areas that may require additional or alternative measures. Most storm water quality measures utilized during active construction are highly susceptible to failure and require frequent monitoring.
NOI and Project Notification
If the project site owner is to notify IDEM within 48 hours of the actual start date, shouldn't the reviewing authority, which is usually the one that does the site inspections, also be informed?
The Notice of Intent should be submitted a minimum of 48 hours prior to the initiation of land-disturbing activities. A copy of the Notice of Intent is also required to be sent to the local SWCD or MS4. The receipt of this letter is official notification to the SWCD or MS4. In addition, the Rule also requires that the project site owner or designated representative contact IDEM and the reviewing authority within 48 hours prior of initiating land-disturbing activities. This clause was placed in 327 IAC 15-5 to provide notification to both IDEM and the SWCD or MS4 of the actual start date of a project; this will be especially important for projects that may not start for months following the submittal of the Notice of intent.
I am a developer of a large multi-lot residential development and have sold most of the lots to independent builders. Can I terminate my permit under Rule 5?
No, the building lots are not permitted individually under 327 IAC 15-5. Rule 5 requires the project site owner that has obtained a storm water permit to maintain responsibility for the project site until all buildings and other structures are fully constructed, no land-disturbing activities are occurring, and the site has achieved final stabilization. Therefore, the project site owner maintains responsibility for ensuring that individual builders are complying with the construction plan. The builders are operating under the permit that was filed for the overall development. Typically the original developer maintains a degree of responsibility within the project area. It is not uncommon for erosion and sediment control practices to be in place and functioning in areas outside of the boundaries for individual lots. These practices can be critical to the overall effectiveness of erosion and sediment control. These practices are still the responsibility of the developer even though he/she may not own the individual lots.