Who May Need a Permit
Any "project site owner" engaged in construction-related activities (meaning any man-made change of the land surface, including removing vegetative cover that exposes the underlying soil, excavating, filling, transporting, and grading) that disturb 1 or more acres of land may be required to obtain a "Rule 5" storm water runoff permit under 327 IAC 15-5 (scroll down to page 10), from the IDEM Office of Water Quality.
Project Site Owner
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 generally reduce pollutants - principally sediment as a result of soil erosion - in storm water discharges into surface waters of the state.
Protect State Water
The purpose of a Rule 5 general permit is to establish requirements to protect State Water from adverse affects from storm-water 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 or exceptional use waters. Permittees will be notified by IDEM if they need to apply for an individual storm water discharge permit.
Permit for Land Disturbances
Why is a permit now also required for land disturbances of between 1 and 5 acres, when it used to be required only for projects of 5 acres or more?
Visit the EPA's website for more information regarding 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 that 5 acres of soil. The 5 acre threshold was consistent with Phase I of the federal storm water runoff rules promulgated (developed) by the U.S. EPA in November 1990. Under Phase II federal storm water runoff requirements, all soil disturbances of 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.
In addition to the lower permitting threshold to 1 acre, there are numerous other differences between the Phase I and Phase II permits that are clarified on this page.
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.
Who Else Needs a Rule 5 Storm Water Run-off Control Permit
- Project site owners disturbing the soil on 1 or more acres within a larger common plan of development or sale that already has a storm water run-off permit may need their own, separate Rule 5 permit.
- Project site owners or farmers constructing agriculturally-related facilities (barns, livestock facilities, roads, agricultural waste lagoons, lakes, ponds, wetlands, or other farming infrastructure) that disturb 1 or more acres of soil.
- "Strip developments" are considered a single project site, and any site that disturbs 1 or more acres of soil must comply with the rule.
- Project site owners who currently hold a Rule 5 permit issued under the previous, Phase I Rule 5 (which was in effect until November 25, 2003) if the effective start date of that permit was more that 5 years ago, and construction under that permit has not yet been completed, then renewal of their permit is required.
On the other hand, if you obtained a Rule 5 permit more that 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.
Who Does Not Need A Rule 5 Storm Water Run-off Control Permit
The following soil disturbing activities do not require a general, Rule 5, or individual NPDES construction-related storm water discharge permit:
- Agricultural activities (tilling, planting, cultivation, harvesting, pasture establishment or renovation, the installation and maintenance of agricultural drainage tiles, or the construction of agricultural conservation devices such as sediment basins, terraces, or grade stabilization structures) or forest harvesting activities.
- Coal mining, because storm water discharges from coal mine and coal mine reclamation areas are regulated by IDEM under a Rule 7 (327 IAC 15-7) permit, and by permits issued the Indiana Department of Natural Resources.
- Sand, gravel, dimensional stone, or crushed stone quarries, because those activities are regulated by IDEM under a Rule 12 (327 IAC 12-12) permit, and by permits issued by the Indiana Department of Natural Resources.
- IDEM permitted municipal solid waste landfills or landfills certified for closure.
- If the land disturbing activity results in the disturbance of 5 acres or less that involves the construction of only 1 single residential dwelling, and that construction is not part of any larger common plan of development or sale.
- Activities that disturb 5 or fewer acres where IDEM has waived permit requirements after a demonstration by the project site owner, using analysis equivalent to a total maximum daily load (TMDL) study, that the land disturbing activities will not require controls to protect existing water quality.
- Any land disturbing activity that results in the disturbance of less than 1 acre. (Nonetheless, IDEM may require a permit for soil disturbances of less than 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.)
Larger Common Plan of Development or Sale
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.
Also please be aware that, if soil disturbance to less than 1 acre occurs on a lot that is part of a larger common plan of development or sale (see sidebar) that already is permitted under Rule 5, that soil disturbing activity remains subject to Rule 5 permitting requirements. Hence the person or project site owner disturbing less that 1 acre of soil within such a larger common site must comply with the existing Rule 5 permit and Construction Plan for that site. However, they do not need to submit a separate NOI letter for a separate Rule 5 permit.)