IDEM: Permit Guide: Storm Water Run-off - Construction Sites (Rule 5)

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Table of Contents: Water Quality

Permit Guide: Storm Water Run-off - Construction Sites

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.

Who May Need a Permit

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.

Why is a Permit Now Also Required For Land Disturbances of Between One (1) and Five (5) Acres, When It Used To Be Required Only For Projects of Five (5) Acres Or More?

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.

Who Else Needs a Rule 5 Storm Water Run-off Control Permit:

Project site owners disturbing the soil on one (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 one (1) or more acres of soil.
"Strip developments" are considered a single project site, and any site that disturbs one (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 five (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 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.

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, mining activities may be regulated by IDEM under a Rule 6 (327 IAC 15-6) and/or a Rule 12 (327 IAC 15-12) permit. Rule 5 permits are required for the removal of overburden from new facilities or the expansion of a facility this is not permitted under Rule 6.
IDEM permitted municipal solid waste landfills or landfills certified for closure.

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).

Activities that disturb five (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 one (1) acre.

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.

Some of the things a project site owner must do to comply with Rule 5 include (but are not limited to):

Creating and Implementing a Construction Plan

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.

Submitting the Construction Plan

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?

Yes, the Construction/Storm Water Pollution Plan should be submitted to the appropriate MS4. Contact information for the MS4 can be obtained at Designated MS4 Entities Currently Permitted. Note: Projects owned or operated by an MS4 must be submitted in accordance with item two (2) below.
No, the project is subject to Rule 5 and the plan should be submitted to the local Soil and Water Conservation District (SWCD) with the exception of projects that occur within the counties of Noble and Ohio. Projects occurring within these counties will require plans to be submitted to:

IDEM, Office of Water Quality
Rule 5 Storm Water Program
100 North Senate Avenue, MC 65-42
Indianapolis, Indiana 46204-2215

Approval of the Construction Plan

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.

Projects Subject to Rule 5

The project site owner should receive notification from the review authority (SWCD or IDEM) that the plan meets the minimum requirements of the rule, the plan is deficient, or a written notice that the plan has been received and the review waived.
If an official notice is not received, the project site owner or his/her representative should contact the review authority to determine the status of the plan submittal and obtain appropriate documentation to include with the submittal of the NOI.
If the plan is deemed sufficient or a letter is received indicating that a formal plan review will not be completed for the project, the project site owner may proceed with submittal of the Notice of Intent (NOI).

Projects Subject to a Local MS4 Ordinance

The project site owner should receive notification from Municipal Separate Storm Sewer Systems (MS4) that the plan meets the requirements of the local ordinance, plan is deficient, or a written notice of the plan status directing the applicant to submit an NOI to IDEM.

If the plan is deemed sufficient or a letter is received directing the applicant to submit an NOI for the project, the project site owner may proceed with submitting the Notice of Intent (NOI).

Submitting the NOI (Notice of Intent) Form

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:

Proof of publication in a newspaper of general circulation of the project site owner's notification to the public;
A $100 application fee; and,
A construction plan review approval verification form, or "construction approval document" - a notification from the Soil and Water Conservation District (SWCD) or other reviewing agency that stating that the construction plan is sufficient.

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:

IDEM/Cashier
100 N. Senate Ave., MC 50-10C
Indianapolis, IN 46204-2215

Notification of Land Disturbance

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.

Requirements Once Land Disturbance Has Begun

The construction plan must be implemented before, during, and after construction activities occur.

Run-off from the site must be treated by sediment and erosion control measures to minimize sedimentation.
Trash and waste must not be carried off-site by wind or storm water run-off.
Concrete truck washout areas must be clearly posted.
There shall be a stabilized stone surface at all access points to the construction site that inhibits mud and potential sediments from being carried off-site by vehicle tires.
Public and private roadways shall be kept clear of mud and soil tracked off-site by vehicle traffic or construction equipment. Any mud or soil that is tracked off-site must be gathered up and disposed, or redistributed on-site. Roadways may not be cleared of mud or soil by being flushed with water, such as spray from a water hose.
The project site owner must post, near the project main entrance, or near the project field office:
- A copy of the completed NOI letter to IDEM,
- Contact information (address, phone, and e-mail) of the project site owner or designated contact person, and the
- Location of the construction plan, if one is not stored on-site.
The project site owner must implement the construction plan, its associated storm water pollution prevention plan, and all other measures necessary to adequately prevent polluted storm water run-off or sediment-laden run-off.
It is the responsibility of the project site owner to make sure that all contractors, subcontractors, and other workers are aware of the construction plan and the storm water pollution prevention plan (which is part of the construction plan), and that all the various workers at the site ensure proper implementation of the plan.
Phasing of construction activities should be used where possible to minimize disturbing large areas of soil.
All storm water quality measures must be designed and installed under the guidance of a trained individual. (Someone trained and experienced in the principles of storm water quality, including erosion and sediment control as demonstrated by a state registration, professional certification, experience, or completion of coursework that enables the individual to make judgments regarding storm water control or treatment and monitoring.)
Collected run-off must either be diffused to the adjacent property or into a stable receiving channel, and may not cause erosion.
Natural features such as sinkholes and wetlands shall be protected from pollutants and sediments.
Unvegetated areas left inactive for more than fifteen (15) days must be temporarily or permanently stabilized.
All storm water quality measures and erosion control fixtures shall be maintained in working order.
A self-monitoring program must be implemented, and written evaluation reports maintained that, upon request, must be made available to inspecting authorities within forty-eight (48) hours.
Proper storage, materials handling, and spill prevention and clean-up measures shall be implemented to minimize surface water or ground water contamination.
When all land disturbing activities have been completed, a perennial vegetative cover or equivalent permanent stabilization measure must be established over at least 70% of all unpaved areas; except that projects on agricultural land must be returned to their pre-construction agricultural use.

Completion of Project

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.

The project site owner must remove all temporary erosion control fixtures.
The entire site must be permanently stabilized.
The project site owner must submit a notice of termination (NOT) letter to IDEM.
The owner of a site that has been divided into multiple building lots may submit a NOT letter even if all the sites have not yet been developed if:
- the undeveloped area does not exceed five (5) total acres, with no contiguous areas of one (1) or more acres,
- all permanent storm water measures are in place,
- all common areas and infrastructure have been completed and stabilized, and
- a map of all undeveloped lots and the names of their owners is submitted with the NOT letter. If such "early release" is approved by IDEM, the project site owner must notify each owner of undeveloped property and inform them of their storm water pollution prevention responsibilities.
The rule states that the Notice of Termination will be submitted to the IDEM at:

IDEM, Office of Water Quality
Rule 5 Storm Water Program
100 North Senate Avenue, MC 65-42
Indianapolis, Indiana 46204-2215

A copy of the NOT should also be sent to the plan review authority, Soil and Water Conservation District (SWCD) or an MS4 Entity with a Certified Construction Program. The entity will usually be the same as reviewed the construction plan.

What to Expect

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).

For Additional Information

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.

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