IDEM Rebuilding Construction Run-Off Permits: What You Need to Know

Storm water permits for construction run-off are changing, and the new permit program will impact the construction industry.

For background, permits for storm water runoff associated with construction activities are currently obtained by filing a “notice of intent” to operate under Rule 5, or 327 IAC 15-5. Rule 5 is a “permit by rule,” which is a general permit established by rules promulgated by the Indiana Department of Environmental Management. At the urging of U.S. EPA, IDEM is in the process of adopting a storm water general permit for construction activities that is established administratively, rather than by rule. IDEM has already held meetings with advisory groups and shared a draft of the new general administrative permit with EPA, which indicated it has no objections. Timing of IDEM adoption of the new permit program remains speculative; however, there is some indication that public notice of the new administrative general permit could be issued as soon as early 2019.

So, what does this mean for the construction industry? Storm water permits for construction activities will still be required for construction activities affecting more than one acre of land or that are part of a larger common plan of development, and storm water permits will still be obtained by filing a notice of intent. However, the new administrative general permit imposes stricter and broader requirements, which will inevitably make compliance costlier and more burdensome for permit holders.

Further, while nothing is final yet, the draft of the administrative general permit requires all current permit holders to take action within 90 days of adoption of the new general administrative permit by IDEM. Current permit holders will be required to agree to operate under the new general administrative permit—by either filing an entirely new notice of intent or by filing a “continuation of coverage” notice of intent. Alternatively, current permit holders can notify IDEM in writing of their intent to terminate permit coverage. Rule 5 permit holders can also apply for issuance or modification of an individual permit for their discharge currently allowed by their Rule 5 permit, and only in these cases will the Rule 5 permit remain in effect until issuance of the individual NPDES permit.

The new requirements imposed by the general administrative permit drafted by IDEM touch almost all aspects of permit compliance, from 33 new minimum requirements for managing storm water discharges to new procedures for submitting a notice of termination and post-construction planning. A sampling of the changes, gleaned from this general permit fact sheet compiled by IDEM, follow; however, this list is by no means exhaustive or final, so be sure to continue monitoring IDEM’s development of the new permit system to ensure you are informed and prepared to comply.

• Permit holders are required to “[m]aintain pre-existing natural buffers up to fifty (50) foot in width that are adjacent to waters of the state . . . unless unfeasible.” Section 3.0(c)(3). While it is unclear what may be deemed “unfeasible,” this requirement could significantly reduce the size of available construction sites and will need to be considered during the construction site selection and design processes.
• Post-construction storm water management measures must be designed and implemented such that the “expected total suspended solid (TSS) load in run-off” from a one-inch rainfall be reduced by a minimum of 80% “including floating debris, oil, and petroleum products.” Section 3.0(c)(5)(F). Depending on how this provision is interpreted and enforced, it could result in a significant increase in the amount of sampling and analytical work required of permit holders.
• Permit holders are required to maintain a “project management log.” This log will identify all individuals responsible for permit compliance and include information related to all “off-site borrow sites, disposal areas, and staging areas” with contact information for the operator of those sites; all reports; all significant rainfall occurrences, regulatory inspections, responses to compliance actions or enforcement actions; and dates of all construction plan modifications. Section 3.0(c)(30).
• Only “qualified individuals” can perform certain duties related to the development, design, and implementation of the construction plan and storm water measures. Section 3.0(c)(31). A “qualified individual” is someone whose storm water expertise is “demonstrated by state registration, professional certification, experience, or completion of coursework…” Appendix B(aa). Specific qualifications as to level of experience or any kind of state registration process are not set forth by the new general administrative permit and different states have established different standards in implementing EPA’s NPDES rules. The ambiguity in Indiana’s standard allows some flexibility; however, permit holders should ensure they select a truly qualified individual who has completed NPDES coursework and attained some accreditations to avoid non-compliance and potential liability.

To learn more about how to prepare for the new general administrative permit, contact attorneys Donald Snemis (Donald.Snemis@icemiller.com) of Ice Miller LLP.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.