Engineering Analysis for Urban Drainage Systems

If your client is a private land owner or developer, your likely goals will be to meet minimum standards and keep project costs down (watch the bottom-line).

If your client is a public agency, your likely goals will be public safety and to keep project costs down.

Unless political pressure expands your job into:• a landscape project with incidental storm drain benefits• a new road surfacing, traffic signal and traffic striping project with incidental storm

drain benefits, or• a utilities upgrade project with incidental storm drain benefits.

As part of storm drain planning, please be aware that while rare, the scope creep (or project expansion) illustrated above will usually occur just prior to project advertisement (first two bullet points) or during construction activity (last bullet point).

IN HOUSE ?A/E?

A decision must be made whether to assign to Consulting Firm or In-House staff

County of Orange, Director of Public Works

In House Staff?Subconsultant?

A decision must be made whether to assign to Consulting Firm or In-House staff

Unauthorized use of Bruce’s Mug Shot

For sake of argument

Time & Money Utilities NEPA/CEQA&

Permits

Right of Way

DeathWar Famine Pestilence

• Utilities• Right of Way• NEPA/CEQA & Permits

• Time & Money

It’s not that these issues will necessarily kill your project (although they can)…

It is more likely that these issues will send your job to PROJECT PURGATORY (considerable project delays)

where it just feels like you’ve been sent to Hell!

SuperProject

Manager

Proper project planning (AKA: Project Management)

can help us avoid the common pit falls associated

with storm drain projects.

Christopher Columbus

Step 2. Research/Review Existing Documents

Project Reports

Design Memoranda

Special Studies/Reports

Geotechnical Studies

Hydrology

Right Of Way

CEQA/Permits

As-built/Record Drawings

Surveys Reports

Existing Utilities Info

1. Identify any unusual site conditions

2. Visually identify any utilities, ROW constraints, and potential construction access problems

3. Get an idea of what type of environmental documentation may be required and what type of permitting may be necessary

4. Think about impact of project to adjacent property owners. Will public support project?

5. Photo-document project site for future reference. take measurements as needed.

Review/Finalize Project Scope or Scope Of Work/Proposal

Begin Procurement of Long Lead Time Service

Requests (the Four Horsemen)

California Government Code 4526.

Notwithstanding any other provision of law, selection by a state or local agency head for professional services of private architectural, landscape architectural, engineering, environmental, land surveying, or construction project management firms shall be on the basis of demonstrated competence and on the professional qualifications necessary for the satisfactory performance of the services required. In order to implement this method of selection, state agency heads contracting for private architectural, landscape architectural, professional engineering, environmental, land surveying, and construction project management services shall adopt by regulation, and local agency heads contracting for private architectural, landscape architectural, professional engineering, environmental, land surveying, and construction project management services may adopt by ordinance, procedures that assure that these services are engaged on the basis of demonstrated competence and qualifications for the types of services to be performed and at fair and reasonable prices to the public agencies. Furthermore, these procedures shall assure maximum participation of small business firms, as defined by the Director of General Services pursuant to Section 14837.

A Public Agency cannot shop for Professional Services based on “Price”

Long Lead Time Procurements

The thing to remember about long lead time procurements is that you have very limited control over their completion, and any one of them can become the critical path for your project.

And it only takes one of these long lead time items to derail your project.

Further delay and complication may arise if any one of your long lead time items require the use of an A/E or Subconsultant.

Long Lead Time Procurements

Environmental Documentation

CEQA, NEPA, or bothCalifornia Environmental Quality Act of 1970 National Environmental Policy Act of 1969

CEQA

http://ceres.ca.gov/topic/env_law/ceqa/more/tas/ceqa_nepa/section2.html

http://ceres.ca.gov/topic/env_law/ceqa/more/tas/ceqa_nepa/section2.html

The California Environmental Quality Act (CEQA) was adopted in 1970 and incorporated in the Public Resources Code §§21000-21177. Its basic purposes are to: inform governmental decision makers and the public about the potential significant environmental effects of proposed activities; identify ways that environmental damage can be avoided or significantly reduced; require changes in projects through the use of alternatives or mitigation measures when feasible; and disclose to the public the reasons why a project was approved if significant environmental effects are involved. CEQA applies to projects undertaken, funded or requiring an issuance of a permit by a public agency. The analysis of a project required by CEQA usually takes the form of an Environmental Impact Report (EIR), Environmental Impact Statement (EIS), Negative Declaration (ND), or Environmental Assessment (EA).

The National Environmental Policy Act (NEPA) of 1969 established national policies and goals for the protection of the environment. NEPA directs all federal agencies to give appropriate consideration to the environmental effects of their decision making and to prepare detailed environmental impact statements (EIS) on recommendations or reports on proposals for legislation and other major federal actions significantly affecting the quality of the environment. NEPA is divided into two titles. Title I outlines a basic national charter for protection of the environment. Title II establishes the Council of Environmental Quality (CEQ) which monitors the progress made toward achieving NEPA goals, advises the president on environmental issues and provides guidance to other federal agencies on compliance with NEPA.

Also, when there is an endangered species involved, but US Fish and Wildlife Service/US Corps of Engineers will usually conduct their own NEPA review.

Long Lead Time ProcurementsEnvironmental Documentation

EIR/EIS – What’s the difference?

Initial Study/Environmental Assessment

Categorical Exemption/FONSI

Environmental documentation must be complete and certified before most environmental regulatory agencies will accept your permit application as complete.

CEQA – Mitigated Negative Declaration

I’ve been told – 2 to 4 lbs

Finding of No Significant Impact

Biological Assessment & JD Jurisdictional Delineation

Long Lead Time Service Procurements

General Plan Conformity – CGC65402(b)

Unicorp. County – OC Planning

City Planning Dept.

COUNTY/OCFCD

CITIES

General Plan Conformity – CGC65402(c)

PRIVATE ENTITIES

Subdivision Map Act – Tract Map ConditionsCounty/City – encroachment permits

65402.

(c) A local agency shall not acquire real property for any of the purposes specified in paragraph (a), nor dispose of any real property,

nor construct or authorize a public building or structure,

in any county or city,

if such county or city has adopted a general plan or part thereof and such general plan or part thereof is applicable thereto, and …. until the location, purpose and extent of such acquisition, disposition, or such public building or structure have been submitted to and reported upon by the planning agency having jurisdiction, as to conformity with said adopted general plan or part thereof.

Failure of the planning agency to report within forty (40) days after the matter has been submitted to it shall be conclusively deemed a finding that the proposed acquisition, disposition, or public building or structure is in conformity with said adopted general plan……


Hydrology (Watershed over 640 acres – Unit Hydrograph Method)

Subconsultant?

In-House Staff?

Geotechnical and Materials – A/E?

Geomatics (AKA: Surveys)

Tunneling, Boring, or Hazardous Mat’l.?

Multiple surveys/As-Builts - Always be sure to match your datums!!!

When micro-tunneling, 99.9% of the time, expect your contractor to claim “Changed Conditions”

Tide Charts

Metric

Always check for yearly adjustments

Utility Information.

Every house or business usually has at least 3 utility connections within the street r/w: gas, water, and sewer. In areas with underground utility districts there may be as many as six (6) including: electrical power, telephone, and cable TV (communications) although not desired, sometimes under the sidewalk.

Reclaimed water (purple plastic) pipe is becoming more prevalent as well.

Utilities

On a typical residential street (Orchid Street) we have water, gas, and sewer lines to relocate for every house on at least one side of the street (in this case, the west side of the street.)

GAS

SEWER

WATER

PROPOSED STORM DRAIN & CATCH BASINS

FOR THIS STREET: ELECTRICAL, TELEPHONE, AND CABLE LINES ARE LOCATED ON UTILITY POLES BEHIND THE HOUSES.

STORM DRAIN DESIGN

Note: It is common for sanitary sewer lines to occupy the street centerline, and many times it can be difficult to relocate sewer lines & laterals because they also flow by gravity.

We must also be aware of standard/code clearances for utilities.

Requesting Pertinent Utility Information.

Many times older sanitary sewer and water lines are made of vitrified clay (VCP) or asbestos clay (ACP) materials. Attempts to relocate or bridge older lines (even cast iron and plastics) can many times lead to catastrophic results.

You cannot relocate or repair ACP with ACP. It must be replaced with another material and the damaged or replaced ACP must be disposed of as hazardous material.

It may be your intent to protect in place an old utility line, but the “you break it; you buy it!” policy of many utilities and agencies may make your storm drain construction very challenging. You may want to include in your design and estimate to repair or replace old utilities that must be bridged across your storm drain excavation trenches.

MINIMUM UTILITY

CLEARANCES FOR THE CMSD

Interestingly enough, the as-built plans of the utilities most likely to injure or kill your construction workmen show the least amount of detail in terms of location and depth.

Major and primary arterial highways usually contain major transmission and distribution utility lines in addition to the above.

San Bruno Pipeline Explosion 10Sept2010

Cross section of South Bristol Street showing nine (9) utilities within the street right of way: five (5) of the nine (9) utilities are transmission lines.

ASCE - STANDARD GUIDELINE FOR THE COLLECTION AND DEPICTION OF EXISTING SUBSURFACE UTILITY DATA (38-02)

UTILITY QUALITY LEVEL ATTRIBUTESQuality Level D

Quality Level C

Quality Level B

Information derived from existing records or oral recollections.

Information obtained by surveying and plotting visible above-ground utility features and by using professional judgment in correlating this information to quality level D information.

Information obtained through the application of appropriate surface geophysical methods to determine the existence and approximate horizontal position of subsurface utilities. Quality level B data should be reproducible by surface geophysics at any point of their depiction. This information is surveyed to applicable tolerances defined by the project and reduced onto plan documents.

Quality Level APrecise horizontal and vertical location of utilities obtained by the actual exposure (or verification of previously exposed and surveyed utilities) and subsequent measurement of subsurface utilities, usually at a specific point. Minimally intrusive excavation equipment is typically used to minimize the potential for utility damage. A precise horizontal and vertical location, as well as other utility attributes, is shown on plan documents. Accuracy is typically set to 15-mm vertical and to applicable horizontal survey and mapping accuracy as defined or expected by the project owner.

Right of Way


ROW is usually your longest lead time item when required for a public agency project.

If all goes well, the right of way acquisition process usually takes between 18 and 24 months.

Condemnation (public agency powers only) proceedings and hearings could add significantly more time.

AKA: Easement in Gross

AKA: Easement Appurtenant

AKA: Easement Appurtenant

AKA: Prescriptive Easement

Can a prescriptive easement across government land be obtained?

No, it is not possible to obtain a prescriptive easement against land held by local, state and federal government. The courts have long held that “time does not run against the King.” California Civil Code Section 1007.

Can the government get a prescriptive easement across private land?

While there have been few court cases in California on this question, it appears that governmental entities may acquire prescriptive easement rights over private property.

Otay Water District v. Beckwith (1991)

In a situation of “difficult and peculiar facts,” the court confirmed a prescriptive easement right for a water district to maintain a reservoir that encroached 20 feet onto an adjacent parcel. Recent cases have made it clear that this case should have been decided on a balancing of the hardships test, rather than on a prescriptive easement theory.

The government’s power is not absolute. There are two constitutional limitations:

• Just Compensation• Public Necessity

Just Compensation includes:• Fair Market Value – highest price property would bring on open market where buyer had knowledge of all uses and purposes to which it is adaptable (highest and best use)• Severance Damages – only for partial take – compensation for take and damage to remainder of parcel• Fixtures and equipment – cannot be removed without a substantial economic loss• Divided Interests in Property – co-owners, liens, encumbrances, leases, etc.• Loss of Business Goodwill – loss of benefits a business enjoys from its location• Inventory – crops, cattle, etc.• Precondemnation Damages – excessive delays in commencement of condemnation action following announcement to condemn or engagement in other unreasonable conduct also known as Klopping damages from Klopping vs City of Whittier

• Interests and Costs – possession before trial interest accrues, normal court costs

• Attorney’s Fees and Appraisal Fees – usually not recoverable, however final settlement demand may request and jury may allow/award.

• Public Necessity

Section 1245.230.

In addition to other requirements imposed by law, the resolution of necessity shall contain all of the following:

(a) A general statement of the public use for which the property is to be taken and a reference to the statute that authorizes the public entity to acquire the property by eminent domain.

(b) A description of the general location and extent of the property to be taken, with sufficient detail for reasonable identification.

(c) A declaration that the governing body of the public entity has found and determined each of the following: (1) The public interest and necessity require the proposed project.

(2) The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.

(3) The property described in the resolution is necessary for the proposed project.

(4) That either the offer required by Section 7267.2 of the Government Code has been made to the owner or owners of record, or the offer has not been made because the owner cannot be located with reasonable diligence.

California Code of Civil procedure:

Many eminent domain/condemnation lawyers work on a contingency basis which means their client doesn’t pay unless their client prevails.Why – because contingency fees and responsibility for payment of court costs and expert costs are negotiable and not set by law.Eminent domain law is set forth in California Code of Civil Procedure Section 1230.010, et seq.

1) Initial contact by agency to express interest in the property and/or scheduling date for appraisal and/or Hazardous Materials Assessment of property.

2) Appraisal of property and improvements by agency

3) Offer made to owner with summary of appraisal

4) Notice of public hearing to adopt “resolution of necessity” to acquire land by eminent domain

5) Public hearing is held to adopt “resolution of necessity” – Board of Supv. or City Council

6) Case is filed in court and served on property owner

Typical Condemnation Procedure:

7) Deposit by agency of probable amount of just compensation is paid into court and motion by agency for early possession of the property

8) Discovery phase – both parties hire appraisers to determine “fair market value”

9) Exchange of appraisal reports and other documents

10) Final settlement offers and demands

11) Trial of eminent domain action before a jury (Superior Court only)

Jury will decide “just compensation” nothing elseJudge will determine public use, public necessity, and property interests (if disputed)

12) Jury returns verdict and judgment is entered

13) Agency pays verdict within 30 days and title of property is transferred to agency

Property owner will have 90-days to vacate property if legally occupied, 30-days if vacant. However, property owner can apply to the court to stay the order to take possession. Owner can also request that all funds be paid to them & waive right to more money.

(d) This chapter does not preclude a state or local agency that is taking property by eminent domain, negotiating to acquire property in lieu of taking it by eminent domain, or considering the taking of property through the exercise of eminent domain authority, from evaluating the impact on the value of the property resulting from a release or threatened release of any hazardous material, from incorporating that evaluation into any offer of compensation for that property, or from presenting that evaluation at a trial or other proceeding to establish the value of the property.

Section 25395.86 of the California Health and Safety Code

All County/OCFCD right-of-way acquisitions, either from dedication or purchase, follow the Orange County Board of Supervisors Minute Order of October 20, 1992 for Countywide Hazardous Materials Assessments Policy and Procedure for Real Property Acquisitions, GA 1658-2-2.

http://www.expertlaw.com/library/real_estate/eminent_domain.htmlhttp://www.eminentdomainlaw.net/procedures.htmlhttp://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=0311567082+1+0+0&WAISaction=retrievehttp://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=0311567082+0+0+0&WAISaction=retrieve

http://www.expertlaw.com/library/real_estate/eminent_domain.html

http://www.eminentdomainlaw.net/procedures.html

http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=0311567082+1+0+0&WAISaction=retrieve


Not all permits required are environmental or regulatory

And, not all environmental regulatory agencies require/issue permits: some issue

agreements.

The Talbert Channel Outlet project (seen here) was required to obtain approximately ten (10)

permits.

Permits

Environmental Regulatory Permits

USACOE – Clean Water Act - Section 404 & 10Individual/Standard Permits (SEC. 404, 33 USC 1344) (SEC. 10, 33 USC 403) respectively.

Federal Government Permits

A Section 10 of the Rivers and Harbors Act of 1899 Permit is to regulate/prohibit the obstruction or alteration of navigable waters of the Untied States. (Probably not an issue for a storm drain)

An example of when a storm drain project would need a 404 permit:

A road widening project where the expansion of the road will cover or re-align an existing channel or earthen drainage ditch.

Alton Parkway Extension

Borrego Wash (F20)

$1,000,000 habitat creation

Other Mitigation Impacts:

LBV and CA gnatcatchers

82 acres invasives removal (J01)

Cowbird trapping – 5-years

$62,000 financial assurance

Oaks and Sycamores – 10 to 1 replacement ratio

5-year establishment period

When it comes to the Clean Water Act (CWA), there seems to be three landmark court cases that are cited frequently:

• US v. Riverside Bayview Homes Inc. - 1985

• SWANCC v. USACOE - 2001

• US v. Rapanos & Carabell v. USACOE - 2006(referred to frequently as the Rapanos decision)

Each of these landmark court cases were decided by the US Supreme Court and dealt with Navigable Waters and what are Waters of the US under the USACOE jurisdiction

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=474&invol=121&friend=nytimes

http://www.law.cornell.edu/supct/html/99-1178.ZS.html


Solid Waste Agency of Northern Cook County

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=474&invol=121&friend=nytimes



In US v. Riverside Bayview Homes Inc. – 1985, the Supreme Court found that the USACOE did have jurisdiction over all waters found to be Navigable in Fact, their adjacent wetlands, tributaries, and the tributaries’ wetlands.

Section 10 of the Rivers and Harbors Act of 1899

33 U.S.C. 403

That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of War; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or enclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War prior to beginning the same.

Definition of Navigable Waters of the US is given in 33 CFR Part 329

Definition of Navigable-in-Fact

Corps districts and EPA regions should be guided by the relevant opinions of the federal courts in determining whether waterbodies are “currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce” (33 C.F.R. § 328.3(a)(1); 40 C.F.R. § 230.3(s)(1)) or “navigable-in-fact.”

This definition of “navigable-in-fact” comes from a long line of cases originating with The Daniel Ball, 77 U.S. 557 (1870). The Supreme Court stated:

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.

US Army Corps of Engineers & EPA Guidance Document (June 5, 2007)

Navigable in Fact means Navigable in Law

(Appendix D)

In The Montello, the Supreme Court clarified that “customary modes of trade andtravel on water” encompasses more than just navigation by larger vessels:

The capability of use by the public for purposes of transportation and commerce affords the true criterion of the navigability of a river, rather than the extent and manner of that use. If it be capable in its natural state of being used for purposes of commerce, no matter in what mode the commerce may be conducted, it is navigable in fact, and becomes in law a public river or highway.


In that case, the Court held that early fur trading using canoes sufficiently showed that the Fox River was a navigable water of the United States. The Court was careful to note that the bare fact of a water’s capacity for navigation alone is not sufficient; that capacity must be indicative of the water’s being “generally and commonly useful to some purpose of trade or agriculture.” Id. at442.


In United States v. Holt State Bank, 270 U.S. 49 (1926), the Supreme Courtsummarized the law on navigability as of 1926 as follows:

“…streams or lakes which are navigable in fact must be regarded as navigable in law…”

In U. S. v. Utah, 283 U.S. 64, (1931) and U.S. v. Appalachian Elec. Power Co,311 U.S. 377 (1940), the Supreme Court held that so long as a water is susceptible to use as a highway of commerce, it is navigable-in-fact, even if the water has never been used for any commercial purpose.

In summary, when determining whether a water body qualifies as a “traditionalnavigable water” (i.e., an (a)(1) water), relevant considerations include whether a

• Corps District has determined that the water body is a navigable water of the United States pursuant to 33 C.F.R § 329.14, or

• the water body qualifies as a navigable water of the United States under any of the tests set forth in 33 C.F.R. § 329, or

• a federal court has determined that the water body is navigable-in-fact under federal law for any purpose, or the water body is “navigable-in-fact” under the standards that have been used by the federal courts.

The Environmental Protection Agency (EPA) and United States Army Corps ofEngineers (Corps) “Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in US v. Rapanos and Carabell v. USACOE”


Federal regulators who decide whether a stream is protected by the law must first find the closest navigable waterway. Then they have to decide whether the stream has any effect on that waterway.

If it doesn't, landowners may not be required to obtain certain federal permits before building homes, roads or other projects over those seasonal streams. Their plans, however, would still be subject to local zoning laws and building codes.

“When we looked at the L.A. River, we did not find evidence of navigation,” beyond the Pacific Coast Highway bridge in Long Beach, two miles north of the ocean, said Aaron Allen, the regulator who wrote the draft decision.

…the 2006 Supreme Court decision in which Justice Anthony Kennedy wrote that the Clean Water Act would apply to a water body if it had a "significant nexus" with "traditional navigable waters."

Allen's review ballooned into a full-scale review of the Los Angeles River. He concluded that only 1.75 miles of the river upstream from the ocean is navigable.

“Presently, the occasional use of kayaks and/or canoes on other reaches of the river are sporadic and do not support any associated commerce," Allen wrote in the March 20 memorandum. Nor could he find evidence of historical navigation.

Aaron Allen, Chief of the Corps' North Coast office in Ventura, holds a UCLA doctorate in fluvial geomorphology, or how streams shape the land.

So, What is this Landmark Rapanos Case?

John and Judith Rapanos owned properties known as the Salzburg, Hines Rd., and Pine River sites in Michigan. The Rapanoses were charged with filling in wetlands on these properties starting in 1988.

In 1988 Rapanos wanted to build a shopping center. State officials said that there may be wetlands on his property, so he hired Dr. Goff in 1989 to conduct a wetlands study of a property know as the Salzburg site.

Dr. Goff’s report identified between 48 and 58 acres of wetlands.

Rapanos didn’t like the report and ordered the report destroyed. Dr. Goff scoffed at the request, and Rapaonos threatened to destroy Dr. Goff and bulldoze the property.

In 1989, workers began leveling the site and filling low spots. In August State officials tried to inspect the site but were denied access. They then returned with a search warrant 3 months later. In 1991 EPA issued an administrative order and referred the matter to the Dept. of Justice.

Rapanos did similar things at the two other building sites.


Rapanos was brought up on criminal and civil charges simultaneously. In the criminal case, the 1st trial ended in a mistrial.

Rapanos appeals the decision to the Sixth Circuit Court of Appeal which upheld the District Court’s conviction in 1997.

Rapanos appealed the decision to the Supreme Court which vacated the decision and remanded the case back to the 6th Circuit Court in light of a recent ruling known as the SWANCC ruling in 2001.

On remand, the District Court set aside the conviction citing the SWANCC decision; however, the Sixth Circuit reversed the District Court’s findings on SWANCC as specific to the case and having little effect on CWA then remanded the case back to the District Court for sentencing in 2003. Supreme Court denied Rapanos’ petition for a writ of certiorari (judicial review) in 2004.

2nd trial was moved to Flint, Michigan and jury found Rapanos guilty on two charges on March 7, 1995. District court granted Rapanos’ motion for a new trial based upon improper questioning.

6th Circuit remanded the case back to the District Court.


“The trial judge, Chief Judge Lawrence P. Zatkoff of the Eastern District of Michigan, refused to sentence Mr. Rapanos to jail despite the federal sentencing guidelines, giving the following reasons:

“…the case that I just sentenced prior to this case . . . was the case of Mr. Gonzalez, who was a person selling dope on the streets of the United States. He is an illegal person here. He’s a citizen of Cuba, not an American citizen. He has a prior criminal record . . . . So here we have a person who comes to the United States and commits crimes of selling dope and the government asks me to put him in prison for ten months. And then we have an American citizen who buys land, pays for it with his own money, and he moves some sand from one end to the other and government wants me to give him sixty-three months in prison. Now, if that isn’t our system gone crazy, I don’t know what is. And I am not going to do it. Rapanos, 235 F.3d at 259-60.”


District Court ruled against Rapanos and finding that the “Migratory Bird Rule” gave Corps jurisdiction even though the Supreme Court invalidated the MBR in the SWANCC case. The case was then appealed to the Circuit Court.

Sixth Circuit acknowledged wetlands on Rapanos were not physically adjacent to traditional navigable waters, but stated “What is required for CWA jurisdiction over adjacent waters, however, is a “significant nexus between the wetlands and navigable waters, which can be satisfied by the presence of a hydrological connection.”

The Civil Case


Rapanos again appealed the decision to the Supreme Court where the Court found that the CWA cannot be satisfied by the mere presence of any sort of hydrological connection.

Congress has the authority under Commerce Clause regulation to:

1) Regulate the use of the channels of interstate commerce

2) Regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce

3) Regulate activities that substantially affect interstate commerce

• In the SWANCC case, Corps argued that the MBR fell under the third category because millions of people spend billions of dollars bird watching and hunting. • Then the Corps also stated that proposed landfill was “plainly of commercial nature.”• In Rapanos, the Corps adopted a third argument that the regulation of discharges into a navigable water, because of the mere presence of a hydrological connection, is the constitutional equivalent of directly regulating the channel – the actual navigable water – itself.


The Supreme Court found the government’s shifting Commerce Clause rationales raised “significant constitutional questions” because the court would have to decide which theory applied.

All in all, the Federal District, Appellate, and Supreme Courts batted the case around for 12 years. The case was sent to the Supreme Court three times and was heard twice.

June 19, 2006 US Supreme Court ruled in favor of Rapanos, 4-1-4.

How do we interpret a 4-1-4 ruling?

5 of the 9 Justices ruled to overturn the lower court. 4 Justices formed what is called the plurality decision, 4 formed a dissent opinion, and 1 (Justice Anthony Kennedy) acted alone with his own opinion but concurred with the plurality.

Since 5 out of the 9 ruled to vacate the decision of the lower court, Rapanosprevailed. Only the Justices’ opinion on the limitations of the government’s authority or jurisdiction differed in the majority.

We vacate the judgments of the Sixth Circuit in both No. 04–1034 and No. 04–1384, and remand both cases for further proceedings. (Scalia Opinion)


Rapanos appealed the case based upon another similar case: Solid Waste Agency of Northern Cook County v. USACOE where the Corps and EPA were claiming jurisdiction over an abandoned sand and gravel pit based upon the Migratory Bird Act.

January 9, 2001 US Supreme Court ruled in favor of SWANCC, 5 to 4 that isolated waters were not the jurisdiction of the Corps.

Neither Rapanos or SWANCC ruled that the CWA was unconstitutional, but did curtail the Corps jurisdiction.

SWANCC was a compilation of 23 northern Illinois utility and local governmental agencies.


The ruling left us with two tests: The Scalia Plurality v. The Kennedy Concurrence

The Scalia plurality –

Only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes that are connected to navigable-in-fact waters are subject to regulation under CWA. Does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.

Wetlands must have a continuous surface connection to bodies that are waters of the US. The wetland must be indistinguishable from relatively permanent bodies of water, and that body of water must be connected to traditional interstate navigable waters.

The Scalia plurality rejects the Corps definition that adjacent means “bordering, contiguous, or neighboring.” Adjacent means abutting.

In the Rapanos hearing the US Supreme Court lumped two similar cases together: US v. Rapanos and Carabell v. Army Corps of Engineers

Recent court case (Filed August 6, 2007):

Northern California River Watch v. City of Healdsburg, Calif.

The United States Court of Appeals for the Ninth Circuit found in favor of the NCRW that the City of Healdsburg violated the CWA by discharging sewage into Basalt Pond (an abandoned rock quarry) without an NPDES permit.

The Ninth Circuit found Basalt Pond to be considered waters of the US by using the Kennedy Test from the Rapanos Decision that Basalt Pond had a direct nexus to the Russian River that was physical, chemical, and biological.


The Kennedy concurrence –

Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based upon adjacency to non-navigable tributaries. Wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable water,” if the wetlands, either alone or in combination with similarly situated lands in the regions, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.”

In these consolidated cases I would vacate the judgments of the Court of Appeals and remand for consideration whether the specific wetlands at issue possess a significant nexus with navigable waters.

Kennedy Stevens Roberts Scalia Souter

Breyer Thomas

Ginsburg

Alito

Chief Justice

Since there are two tests from the US Supreme Court’s Rapanos Decision (The Scalia Test and the Kennedy Test) and the Ninth Circuit Court of Appeals upheld the District’s Court findings in the Healdsburg Case using the Kennedy Test, the EPA and Corps has issued Guidance to all Corps personnel to use the more liberal Kennedy Test to determine their jurisdiction and what constitutes waters of the US.

Summary of Key Points

The agencies will assert jurisdiction over the following waters:• Traditional navigable waters• Wetlands adjacent to traditional navigable waters• Non-navigable tributaries of traditional navigable waters that are relatively permanent

where the tributaries typically flow year-round or have continuous flow at leastseasonally (e.g., typically three months)

• Wetlands that directly abut such tributaries

The agencies will decide jurisdiction over the following waters based on a fact-specific analysis todetermine whether they have a significant nexus with a traditional navigable water:

• Non-navigable tributaries that are not relatively permanent• Wetlands adjacent to non-navigable tributaries that are not relatively permanent• Wetlands adjacent to but that do not directly abut a relatively permanent non-navigable

tributary

The agencies generally will not assert jurisdiction over the following features:• Swales or erosional features (e.g., gullies, small washes characterized by low volume,

infrequent, or short duration flow)• Ditches (including roadside ditches) excavated wholly in and draining only uplands and

that do not carry a relatively permanent flow of water

The agencies will apply the significant nexus standard as follows:• A significant nexus analysis will assess the flow characteristics and functions of the

tributary itself and the functions performed by all wetlands adjacent to the tributary todetermine if they significantly affect the chemical, physical and biological integrity ofdownstream traditional navigable waters

• Significant nexus includes consideration of hydrologic and ecologic factors

US EPA Memorandum following Rapanos Decision June 2007

CASQA – Water Quality News Flash – July 28, 2008:

“The Supreme Court decisions removing some waterways from CWA jurisdiction triggered State Water Board and Regional Water Board initiatives to provide protections to non-CWA streams and wetlands using California’s independent authority under the state’s Porter-Cologne Water Quality Control Act. In April 2008, the State Water Board adopted a resolution to develop a Statewide Wetland and Riparian Area Protection Policy.”

LA Times Reported on August 19, 2008:

“In an unusual move, the EPA has told the US Army Corps of Engineers that it is stepping into an obscure debate over whether the [LA] river and its tributary streams are “traditional navigable waters.”

Benjamin H. Grumbles, an EPA assistant administrator for water, sent a letter to the Corps explaining that his agency would make the final determination of what are navigable waters in the LA River…

July 08, 2010|Louis Sahagun

U.S. EPA Administrator Lisa Jackson on Wednesday declared the entire concrete-lined Los Angeles River channel "traditional navigable waters," a designation crucial to applying Clean Water Act protections throughout its 834-square-mile urban watershed.

"We're moving away from the concrete," Jackson told more than 200 residents and government officials on the banks of one of the river's heavily polluted tributaries, Compton Creek.

Five Years Later - 2015

On August 28, 2015, the EPA and the USACE issued what is called the, New WOTUS Rule,” or Water of the United States meant to clarify the Clean Water Act (CWA) in lieu of these three US Supreme Court Cases.

The Goal is to reduce confusion and costs – according to the EPA and USACE

During the rule making process, NAFSMA (National Association of Flood & Stormwater Management Agencies) issued the following comments concerning reduction of confusion and the new clarity brought to the community:

• Vague language could allow MS4s to be considered WOTUS

• Language is silent on LID BMPs

• Vague language could contradict the existing waster water exemption

• Rule redefined the Kennedy Test from “and” to “or” – Physical, Chemical, orBiological nexus – so now only one nexus is needed instead of all three!

• EPA and Corps relied on a paper entitled, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence Report,” which asks “how are things connected?”

• The report contemplates that everything is connected somehow which is fine for scientific research, but not for the development of regulations as the administrative process requires clear boundaries and limits

• Where does the regulatory connection effectively stop?

• Roadside ditches, rills, gullies, and even groundwater formerly exempt could now be considered WOTUS

• An entire watershed could categorically be determined to be WOTUS

• Adjacency is no longer defined as bordering or contiguous, but is now defined as a region, neighboring, floodplain, or riparian area

• Traditional agricultural exemptions are now unclear

• Regional differences need to be considered to allow permitting flexibility

On August 27, 2015 (one day prior to the EPA and Corps announcing the new WOTUS Rule), US District Court of North Dakota Chief Judge Ralph Erickson granted a preliminary injunction on the new rule.

According to the EPA, their interpretation was that the injunction only involved the 13 States within Chief Judge Erickson’s jurisdiction: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North & South Dakota, and Wyoming.

The attorney generals for Texas, Louisiana and Mississippi on September 8 asked a federal court to lift a stay and issue a preliminary injunction on the implementation of the Waters of the U.S. rule

Three other federal district court judges – in Oklahoma, Georgia and West Virginia – have declined separate requests for injunctions.

Georgia, after initially being denied their request for an injunction to stop the Waters of the U.S. rule by U.S. District Judge Lisa Godbey Wood, 11 states led by Georgia are now appealing to the Atlanta-based 11th U.S. Circuit Court of Appeals.

Meanwhile, 18 states are asking the 6th U.S. Circuit Court of Appeals in Cincinnati, where appellate level cases have been consolidated, to put the new rule on hold nationwide.

A number of lawsuits have been filed in both district and appeals courts, and it is yet to be determined which court will ultimately hear the consolidated challenges.


USACOE – Clean Water Act - Section 404 & 10Individual/Standard Permits (SEC. 404, 33 USC 1344) (SEC. 10, 33 USC 403) respectively.


A Section 10 of the Rivers and Harbors Act of 1899 Permit is to regulate/prohibit the obstruction or alteration of navigable waters of the Untied States.

A Section 404 Permit regulates the discharge of dredged or fill material into navigable waters or waters of the US, including wetlands.

33 CFR Part 328 Definition of Waters of the United States Section 328.3 - Definitions.For the purpose of this regulation these terms are defined as follows: The term "waters of the United States" means

1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2. All interstate waters including interstate wetlands; 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats,

sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

i. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

ii. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

iii. Which are used or could be used for industrial purpose by industries in interstate commerce;

4. All impoundments of waters otherwise defined as waters of the United States under the definition;

5. Tributaries of waters identified in paragraphs (a)(1)-(4) of this section; 6. The territorial seas; 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in

paragraphs (a)(1)-(6) of this section. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the United States.

8. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with the EPA.


USACOE – Clean Water Act - Section 404 & 10Alternatives Analysis under EPA Section 404(b)(1) Guidelines


LEDPA – Least Environmentally Damaging Practicable Alternative

The LEDPA determination can be fatal to the project!!!

By agreement, EPA and Dept. of Interior can become very involved 404(b)(1).

The LEDPA requirement is an attempt to avoid environmental impacts instead of mitigating them.

The list of alternatives from which the LEDPA is selected is created after the basic purpose of the project is identified because only alternatives that meet the project's basic purpose need be considered.http://www.usace.army.mil/cw/cecwo/reg/40cfr230.pdf

http://www.usace.army.mil/cw/cecwo/reg/40cfr230.pdf

Clean Water Act Section 404(b)(1)

The fundamental precept of the Guidelines is that discharges of dredged or fill material into waters of the United States, including wetlands, should not occur unless it can be demonstrated that such discharges, either individually or cumulatively, will not result in unacceptable adverse effects on the aquatic ecosystem.

“No discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences."

Applicant must evaluate opportunities for use of non- aquatic areas and other aquatic sites that would result in less adverse impact on the aquatic ecosystem.

A permit cannot be issued, therefore, in circumstances where a less environmentally damaging practicable alternative for the proposed discharge exists (except as provided for under Section 404(b)(2)).

The compliance evaluation procedures will vary to reflect the seriousness of the potential for adverse impacts.

Practicable alternatives are those alternatives that are "available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes."

U.S. Environmental Protection Agency, Department of Defense, Army Corps of Engineers, MEMORANDUM TO THE FIELDSUBJECT: Appropriate Level of Analysis Required for Evaluating Compliance with the Section 404(b)(1) Guidelines Alternatives Requirements

“PRACTICABLE”

• From Webster’s Collegiate Dictionary

Possible to practice or perform: feasible.

The Section 404(b)(1) Guidelines state that the following effects contribute to significant degradation, either individually or collectively:

...significant adverse effects on:

(1) human health or welfare, including effects on municipal water supplies, plankton, fish, shellfish, wildlife, and special aquatic sites (e.g., wetlands);

(2) on the life stages of aquatic life and other wildlife dependant on aquatic ecosystems, including the transfer, concentration or spread of pollutants or their byproducts beyond the site through biological, physical, or chemical process;

(3) on ecosystem diversity, productivity and stability, including loss of fish and wildlife habitat or loss of the capacity of a wetland to assimilate nutrients, purify water or reduce wave energy; or

(4) on recreational, aesthetic, and economic values

Clean Water Act Section 404(b)(1) continued

• Consequently, the Guidelines clearly afford flexibility to adjust the stringency of the alternatives review for projects that would have only minor impacts.

• It is not appropriate to consider compensatory mitigation in determining whether a proposed discharge will cause only minor impacts for purposes of the alternatives analysis required by Section 230.10(a).

• It is not appropriate to select an alternative where minor impacts on the aquatic environment are avoided at the cost of substantial impacts to other natural environmental values.

• It is unlikely that the Guidelines will apply in their entirety to any one activity, no matter how complex. It is anticipated that substantial numbers of permit applications will be for minor, routine activities that have little, if any, potential for significant degradation of the aquatic environment. It generally is not intended or expected that extensive testing, evaluation or analysis will be needed to make findings of compliance in such routine cases.

• The determination of what constitutes an unreasonable expense should generally consider whether the projected cost is substantially greater than the costs normally associated with the particular type of project.• “If an alleged alternative is unreasonably expensive to the applicant, the alternative is not practicable.”Guidelines Preamble, "Economic Factors", 45 Federal Register 85343 (December 24, 1980)

Direction to Corps Staff

Clean Water Act Section 404(b)(1) continued Direction to Corps Staff

• The applicant bears the burden of demonstrating to the Corps that no less environmentally damaging practicable alternative is available

• The alternatives analysis must be fair, balanced, and objective,“ and not used to provide a rationalization for the applicant's preferred result.”

• EPA can prohibit, request withdrawal of the specification, or deny, restrict, or withdraw the use for the specification of any defined area as a disposal site for dredged or fill material pursuant to Section 404(c) of the CWA. Corps staff /applicant specify a project area/disposal site.

• EPA has veto powers over Corps staff under Section 404(c) of the CWA.

• If EPA staff does not like applicant’s 404(b)(1) alternatives analysis, they can request a public hearingand comment period. The EPA will then issue a recommended determination letter or withdraw the proposed determination. This can add two to three months to the 404 permit process even if EPA withdraws its determination. This process can also kill the permit dead in its tracks.

http://www.epa.gov/404c/

http://www.epa.gov/404c


USACOE – Clean Water Act - Section 404 & 10

Individual/Standard Permits (SEC. 404, 33 USC 1344) (SEC. 10, 33 USC)

Alternatives Analysis under Section 404(b)(1)


Nationwide 33 CFR 330 (52 Existing Activities and 9 new Activities – 2012 to 2017)

General Permits are issued nationwide or regionally for a category or categories of activities that are either similar in nature and cause only minimal individual and cumulative adverse impacts (Nationwide and Regional General Permits)

LA District of the Corps has issued Regional General Permit Number 67, Discharges Of Dredged Or Upland‐derived Fill Materials For Beach Nourishment

For approximately the past three decades, the City of Newport Beach has maintained a Regional General Permit (RGP) 54 that provides a relatively streamlined process for permitting dredging and dock maintenance projects.

The San Francisco Bay Regional Water Quality Control Board (RWQCB) and the U.S. Army Corps of Engineers, San Francisco District (Corps) initiated the development of a regional (Bay Area) general permit (RGP) for flood control maintenance activities that have minimal impacts.

Nationwide Permits1. Aids to Navigation2. Structures in Artificial Canals3. Maintenance4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities5. Scientific Measurement Devices6. Survey Activities7. Outfall Structures and Associated Intake Structures8. Oil and Gas Structures on the Outer Continental Shelf9. Structures in Fleeting and Anchorage Areas10. Mooring Buoys11. Temporary Recreational Structures12. Utility Line Activities13. Bank Stabilization14. Linear Transportation Projects15. U.S. Coast Guard Approved Bridges16. Return Water From Upland Contained Disposal Areas17. Hydropower Projects18. Minor Discharges19. Minor Dredging20. Response Operations for Oil and Hazardous Substances21. Surface Coal Mining Activities22. Removal of Vessels23. Approved Categorical Exclusions24. Indian Tribe or State Administered Section 404 Programs25. Structural Discharges26. [Reserved]27. Aquatic Habitat Restoration, Establishment, and Enhancement Activities28. Modifications of Existing Marinas29. Residential Developments30. Moist Soil Management for Wildlife31. Maintenance of Existing Flood Control Facilities32. Completed Enforcement Actions33. Temporary Construction, Access, and Dewatering34. Cranberry Production Activities 35. Maintenance Dredging of Existing Basins36. Boat Ramps37. Emergency Watershed Protection and Rehabilitation38. Cleanup of Hazardous and Toxic Waste39. Commercial and Institutional Developments40. Agricultural Activities

41. Reshaping Existing Drainage Ditches42. Recreational Facilities43. Stormwater Management Facilities44. Mining Activities45. Repair of Uplands Damaged by Discrete Events46. Discharges in Ditches47. [Reserved]48. Commercial Shellfish Aquaculture Activities49. Coal Remining Activities50. Underground Coal Mining Activities51. Land-Based Renewable Energy Generation Facilities52. Water-Based Renewable Energy Generation Pilot Projects

Nationwide Permit General Conditions1. Navigation2. Aquatic Life Movements3. Spawning Areas4. Migratory Bird Breeding Areas5. Shellfish Beds6. Suitable Material7. Water Supply Intakes8. Adverse Effects from Impoundments9. Management of Water Flows10. Fills Within 100-Year Floodplains11. Equipment12. Soil Erosion and Sediment Controls13. Removal of Temporary Fills14. Proper Maintenance15. Single and Complete Project16. Wild and Scenic Rivers17. Tribal Rights18. Endangered Species19. Migratory Bird and Bald and Golden Eagle Permits20. Historic Properties21. Discovery of Previously Unknown Remains and Artifacts22. Designated Critical Resource Waters23. Mitigation24. Safety of Impoundment Structures25. Water Quality26. Coastal Zone Management27. Regional and Case-by-Case Conditions28. Use of Multiple Nationwide Permits29. Transfer of Nationwide Permit Verifications30. Compliance Certification31. Pre-Construction Notification


USACOE – Clean Water Act - Section 404 & 10

Individual Permit (SEC. 404, 33 USC 1344) (SEC. 10, 33 USC) Nationwide 33 CFR 330 (43 Existing Activities and 6 new Activities – March 19, 2007 to March 18, 2012)

Consultation and conference activities under Section 7 of the Endangered Species Act with USFWS –

Concurrence – effects are beneficial, insignificant, or discountable

Formal Biological Opinion – action is likely to have adverse . effects

Alternatives Analysis under Section 404(b)(1)

USFWS - Endangered Species Act – Section 7



Understanding the impact of the Endangered Species Act (ESA) is of paramount importance to your project.

Under Section 10 & 404, the USACOE will only require you to mitigate for habitat/wetland losses once. Usually, all subsequent maintenance activity (sometimes permitted under separate O&M permit) will not require additional mitigation.

Under Section 7 of the ESA, every time a maintenance activity is undertaken in an area known (or potentially could) inhabit endangered species, a Section 7 consultation could be required to evaluate its impact on the species, and mitigation to offset impacts (AKA: Reasonable and Prudent Alternatives) may be required.


Formal consultation is initiated the date USFWS receives complete package from USACOE – if package is complete USFWS must acknowledge receipt within 30-days.

USFWS is allowed 90-days to consult with USACOE & applicant and then 45-days to prepare & submit formal Biological Opinion (BO).

Consultation period can be extended by mutual agreement between USFWS, USACOE, and applicant – 60-days without the consent of the applicant.


If a formal consultation is initiated, applicant must prepare a biological assessment (BA) and environmental assessment (EA).

A BA must be prepared for any action that is deemed a “major construction activity” as defined by 50 CFR Section 402.02.

EA’s are similar to CEQA Initial Studies at federal level and fulfill the requirements of NEPA.

An EA is required even if the action is not deemed a major construction activity but will still have an affect on a listed species. EA’s also discuss social, cultural, and economic effects as well as biological effects. A BA may be part and parcel of an EA.


When the USFWS determines that a proposed action may jeopardize the continued existence of a listed species or result in adverse modification to designated critical habitat, the USFWS, with the assistance of the USACOE and/or applicant, develop Reasonable and Prudent Alternatives (RPAs) that may be undertaken to avoid the likelihood of jeopardy or adverse modification.

If adopted by applicant, this concludes the consultation process.

USFWS - Endangered Species Act – Section 7Section 7(a)(2) regulations (50 CFR §402.02) limit reasonable and prudent alternatives to:

• alternatives the Services believe will avoid the likelihood of jeopardy or adverse modification,

• alternatives that can be implemented in a manner consistent with the intended purpose of the action,

• alternatives that can be implemented consistent with the scope of the action agency's legal authority and jurisdiction, and

• alternatives that are economically and technologically feasible.

If USFWS meet the 1st bullet but not one of the other three, it must be documented in the BO. Project can be reviewed by the Endangered Species Committee which reviews requests for exemptions from 7(a)(2).

While these RPAs must avoid jeopardy or adverse modification, they may result in adverse effects to or take of listed species. If take will occur from the implementation of an RPA, an incidental take statement must be developed to exempt such take from section 9 prohibitions.

Section 9 prohibits the take of an endangered species or its habitat. Incidental take may be allowed under ESA Section 10.

USFWS - Endangered Species Act – Section 10 – Incidental Take

USFWS - Endangered Species Act – Section 7/10

• The term "take" is defined by the Act (section 3(19)) to mean "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."• Harass means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering.

• Harm means an act which actually kills or injures wildlife. Such acts may include significant habitat modification or degradation when it actually kills or injures wildlife by significantly impairing essential behavioral patterns including breeding, feeding or sheltering.

USFWS - Endangered Species Act – Section 10 – Incidental Take

In order to be considered in an incidental take statement, any taking associated with the project must meet the following three criteria. The taking must:• not be likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat,

• result from an otherwise lawful activity, and

• be incidental to the purpose of the project.

The project can meet the first criterion if (1) reasonable and prudent alternatives identified in a jeopardy or adverse modification biological opinion eliminate the likelihood of jeopardy to the species or adverse modification of designated critical habitat or (2) the USFWS makes a finding of no jeopardy or no adverse modification. When the taking associated with the action violates any one of these criteria, the USFWS provides documentation of that fact and a statement that such taking is prohibited by section 9.

USFWS - Endangered Species Act – Section 10A habitat conservation plan (HCP) must accompany an application for an incidental take permit. The purpose of the habitat conservation planning process associated with the permit is to ensure there is adequate minimizing and mitigating of the effects of the authorized incidental take. The purpose of the incidental take permit is to authorize the incidental take of a listed species, not to authorize the activities that result in take.

In some cases, there are more than one incidental take permit associated with a HCP. For example, the Central Coastal Orange County HCP was developed as an overall plan under which each individual participating entity received a separate incidental take permit.

The incidental take permit and HCP allows a project to legally proceed with an activity that would otherwise result in the illegal take of a listed species.


No Surprises Assurances are provided by the government through the Section 10(a)(1)(B) process to non-Federal landowners. Essentially, private landowners are assured that if “unforeseen circumstances” arise, the FWS will not require the commitment of additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed to in the HCP without the consent of the permittee. The government will honor these assurances as long as a permittee is implementing the terms and conditions of the HCP, permit, and other associated documents in good faith.

In effect, this regulation states that the government will honor its commitment as long as the HCP permittees honor theirs.

Once the biological opinion has been prepared by USFWS staff, it is submitted to Corps Regulatory staff for incorporation into the Section 404 Permt.

At this point Corps staff may incorporate the RPA’s into the permit verbatim or Corps staff may revise, alter, modify, or even add to the RPA’s as conditions of the permit. Such was the case with the Section 404 permit for the San Diego Creek Emergency Project in 2003/04.

Sometimes Corps staff or other environmental regulatory authorities (i.e. CDFG or CRWQCB) may not agree with the findings in the BO. It is very important that the BO be prepared in such a way that all regulatory authorities (especially CDFG) agree with its format and findings or the situation could jeopardize the CDFG CESA Certification process.

California Department of Fish And Game

Section 1600 Agreements (Not A Permit?)

State Code mandates that you must enter into agreement with CDFG (Jurisdiction: 100-year water surface)

CESA CERTIFICATION – Calif. Endangered Species Act – CFGC Section 2080.1 – Consistency Determination with Section 7 Consultation-30days

http://www.dfg.ca.gov/habcon/1600/

http://www.dfg.ca.gov/habcon/1600

2081(b) permits are preferred by CDFG over 2080.1 Consistency Determinations for the following reasons:

Under a Consistency Determination: CDFG cannot add any conditions to the federal incidental take statement/permit or biological opinion to meet the full mitigation standard, and must accept it as is, if CDFG determines it to be consistent,

Often the biological opinion does not contain enough details in describing mitigation measures,

The federal standard for including plants is jeopardy,

If pertinent section of the Endangered Species Act change, Consistency Determination could become invalid, and CDFG would have to issue 2081(b) permits for those projects.

2081 (b) and (c) INCIDENTAL TAKE PERMIT PROCESS

1. The authorized take is incidental to an otherwise lawful activity;

2. The impacts of the authorized take are minimized and fully mitigated;

3. The measures required to minimize and fully mitigate the impacts of the authorized take:a. are roughly proportional in extent to the impact of the taking on the species,b. maintain the applicant’s objectives to the greatest extent possible, andc. are capable of successful implementation;

4. Adequate funding is provided to implement the required minimization and mitigation measures and to monitor compliance with and the effectiveness of the measures; and ($62,000 for Alton Parkway Extension project - $1mil. for the San Diego Creek Emergency Project)

5. Issuance of the permit will not jeopardize the continued existence of a State-listed species.

http://www.dfg.ca.gov/habcon/cesa/incidental/incid_perm_proced.html

http://www.dfg.ca.gov/habcon/cesa/incidental/incid_perm_proced.html

CRWQCB – Section 401 Certification

San Gabriel River/Coyote creek/Carbon CreekAnaheim Bay/Huntington Harbour/Co-systemSanta Ana RiverNewport BayNewport Coastal StreamsLos Trancos/Muddy Creek

Laguna Coastal Streams – Laguna CanyonDana Point Coastal Streams – Salt CreekSan Juan Creek

Aliso Creek

San Clemente Coastal Streams – M01 & M02San Mateo Creek

Santa Ana Region 8

San Diego Region 9

• Regulates any activity that requires a federal permit (such as a Section 10 or 404 permit) which may result in a discharge to a water body – ensures that proposed activity will comply with State water quality standards

• Water quality standards include:

Beneficial uses – State list

Numeric and narrative limits/objectives

Anti – degradation policy

What are the timelines for processing a 401 application?

Once an application has been deemed complete, the Regional Board has between 60 days and 1 year in which to make a decision. According to regulations of the United States Army Corps of Engineers (Corps), the State has 60 days from the date of receipt of a valid request for water quality standards certification (33 CFR Section 325.2 (b) (1) (ii)). The district engineer may specify a longer (up to one year) or shorter time, if he or she determines that a longer or shorter time is reasonable (33 CFR Section 325.2 (b) (1) (ii)). If processing and review of the 401 application will take more than 60 days, the Regional Board will request additional time from the Corps. This request usually occurs when an applicant has not supplied requested information or the project is complex and issues have not been resolved. Please note that even when an application has been deemed complete, the Regional Board can request additional documentation, if necessary, to clarify impacts, mitigation, or other aspects of the application. If the Corps does not grant a time extension, the Regional Board has the option of denial without prejudice. This is not a reflection on the project, but a means to stop the clock until the required information has been provided. As required by 23 California Code of Regulations (CCR) § 3858(a), the Regional Board is required to have a minimum 21 day public comment period before any action is taken on a 401 application. The period closes when the Regional Board acts on the 401 application. The public comment period does not close after a certain number of days because proposed projects tend to change through the 401 process and the public is allowed to review and comment on the changed project. The public comment period starts as soon as an application has been received.

http://water.epa.gov/lawsregs/guidance/wetlands/sec401.cfm

http://www.epa.gov/owow/wetlands/facts/fact24.html

http://water.epa.gov/lawsregs/guidance/wetlands/sec401.cfm

http://www.epa.gov/owow/wetlands/facts/fact24.html

Governor Schwarzenegger has requested the State Legislature to adopt a plan to reduce (on a per capital basis) California’s water use by 20% by the year 2020. This is an attempt to address the current problems being encountered in the Sacramento – San Joaquin Delta.

Goal is to reduce California’s water use by 1.74 million acre-feet per year to offset predicted state population growth.

California Coastal Commission

Coastal Development Permits (CDP)

California Coastal Act

(Usually) only for projects within the delineated coastal zone boundary

Notice of Permit Waiver Effectiveness (DeMinimus Permit)

http://www.coastal.ca.gov/

http://www.coastal.ca.gov/

Federal Coastal Zone Management Act (CZMA)

Mandates that Federal Government must obtain a consistency determination for Federal Activities and a consistency certification for Federal permits and licenses

US Army Corps of Engineers must obtain such consistency certifications for any Section 404 or Section 10 permits issued within the Coastal Zone

The CCC is an independent, quasi-judicial state agency. The CCC is autonomous and answers to no one.

The CCC has 12 voting members and 3 non-voting members. Six commissioners are public members and six are local elected officials. Four members are appointed each by: the Governor, Senate Rules Committee, and Speaker of the Assembly. Each selects two public and two local electeds.

Secretaries of the Resources Agency, Business and Transportation Agency and Chair of the State Lands Commission are non-voting members.

CCC Staff’s standing policy is – if staff cannot determine if a project or activity may or may not have an adverse affect on the environment, staff will recommend to the Commission that the CDP be denied.

30622. The commission shall act upon the coastal development permit application or an appeal within 21 days after the conclusion of the hearing pursuant to Section 30621.

Typical mitigation ratios for environmental regulatory authorities

2:1 For Temporary Impacts

3:1 For Permanent Impacts

10:1 For Un-permitted Activity

4:1 For Permanent Impacts (CCC)

The AQMD's permitting program has been established to implement the requirements of the federal and state Clean Air Act (CAA), the Air Quality Management Plan (AQMP) and air quality rules and regulations by specifying operating and compliance requirements for stationary sources that emit air contaminants. In order to comply with federal and state CAA requirements, all major and non-major sources in SOCAB are subject to "no net emission increase" and BACT and/or LAER source-specific, prohibitory and toxics rules (federal, state and local) as well as other applicable requirements.

Then the South Coast Air Quality Management District (SC AQMD) may want to talk to you.

The most common types of applications filed at SCAQMD are for Permit to Construct (PC) or Permit to Operate (PO).Prior to installation of new or relocated equipment, or prior to modification of an existing equipment, the operator of the equipment is required to obtain a PC from the SCAQMD.Once a piece of equipment is installed, modified and/or operated, SCAQMD processes the application for a PO.

To apply for a permit: Submit Form 400A, Form 400-CEQA and a supplemental Form 400-E-xx (for certain equipment type) for each equipment along with applicable fees.

Are you contemplating a pump station for your storm drain system?

South Coast Air Quality Management District (AQMD)

Pump Station Engines

AQMD Form 400-A, Application for Permit to Construct & Permit to Operate

http://www.aqmd.gov/permit/Formspdf/Basic/AQMDForm400-A.pdf

http://www.aqmd.gov/permit/requirements_for_permits.htm

http://www.aqmd.gov/permit/Formspdf/Basic/AQMDForm400-A.pdf

http://www.aqmd.gov/permit/requirements_for_permits.htm

DSOD permit (for Dam construction, enlargement, or repair) fees can be well in excess of $10,000. Basically, you reimburse the State for all costs expended on reviewing your project. In addition, you must pay an annual fee equal to: $468/dam plus $129/foot of height.

Section 6307(c) of the CA Water Code: For the purposes of this section, “height of the dam” means the vertical distance, to the nearest foot, from the natural bed of the stream or watercourse at the downstream toe of the barrier, as determined by the department, or from the lowest elevation of the outside limit of the barrier, as determined by the department, if it is not across a stream channel or watercourse, to the maximum possible water storage elevation.

http://www.water.ca.gov/damsafety/

http://www.water.ca.gov/damsafety

US Coast GuardOnly for projects that impact tidal and coastal waters

Usually for bridge projects over waterways

Coast Guard Permit (U.S.) U.S. COAST GUARD BRIDGE PERMIT

The Rivers and Harbors Act of 1899 and the General Bridge Act of 1946 give the U.S. Coast Guard the authority to protect navigable waters of the United States. Navigable waters are those waters that at some time, in the past, present, or future are used to transport interstate or foreign commerce.

In general, a bridge may not be constructed across any of the listed navigable waters until the location and plans have been approved by the U.S. Coast Guard. Approval is shown by issuance of a Bridge Permit.

Nationwide Permit (15) U.S. Coast Guard Approved Bridges(3/18/2002) Discharges of dredged or fill material incidental to the construction of bridges across navigable waters of the United States, including cofferdams, abutments, foundation seals, piers, and temporary construction and access fills provided such discharges have been authorized by the U.S. Coast Guard as part of the bridge permit. Causeways and approach fills are not included in this nationwide permit and will require an individual or regional section 404 permit. (Section 404)

Non-regulatory Permits

Calif. Dept. Of Transportation - Caltrans

$1,000,000 Threshold – PSR, PR, Agmts

Encroachment Permits

Projects for work costing over $1,000,000 within the State rights of way and financed with a sales tax measure, locally funded non-sales tax, or private funds are called Oversight Projects. The Project Development Office assumes responsibility for these projects including obtaining encroachment permits and executing cooperative or highway improvement agreements.

Projects that are 100% funded and constructed by either a local agency, sales-taxmeasure sponsor, or a private entity with construction costing $1,000,000 or less within the existing or future State highway rights of way are called Encroachment Permit Projects. They normally do not require a cooperative or highway improvement agreement and are processed through the District Encroachment Permit Office.

As the steward of the public’s investment in the State highway system, the Department reviews projects-funded-by-others using two main review processes to evaluate a project’s impact on the SHS; Oversight Project (OP) and Encroachment Permit (EP). The District Permit Engineer, in consultation with other functional units, will determine which review process will be used. The determination is as follows:

1) Projects over $1 million will use the OP process.2) Projects under $1 million and complex will use the OP process.3) Projects under $1 million and non-complex will use the EP process.4) Drainage easement projects and utility projects, regardless of cost, will use the EP process.

The above dollar amounts are construction estimates for work within existing and future State right-of-way only and do not include work for routine drainage, utility or the value of dedicated right-of-way. A project is considered complex if it is ineligible for a combined PSR-PR. Other factors that can contribute to the complexity of a project are included in “Considerations for a Combined PSRPR” (see PDPM Chapter 9, Article 9).

CALTRANS: Oversight Projects vs Encroachment Permit Projects

Only Encroachment Permit Projects should be administered entirely by the Office of Encroachment Permits. Other Special Funded Projects are handled mainly by other Caltrans functions such as Planning, Project Development, Right of Way, etc. and are issued an encroachment permit just before construction begins.

http://dot.ca.gov/hq/traffops/developserv/permits/encroachment_permits_manual/index.html

http://dot.ca.gov/hq/traffops/developserv/permits/encroachment_permits_manual

• The primary purpose of a PEER is to document the engineering rationale for Caltran’s decision in a permit action.

• The purpose of the PEER is to document the engineering analysis of the permit actions that affect operation, maintenance, or tort liability of the State highway. While the PEER serves as the State’s project initiation document, its approval also provides project approval.

• The PEER combines engineering review of permit proposals into the normal encroachment permit application review to eliminate and separate processing of a Project Report (PR).

• As a general rule, a PEER should be prepared when the traffic or other actions generated by the permittee adversely affect operation and/or maintenance of the highway or there is potential to expose Caltrans to tort liability suits.

• PEER should be prepared where new signalization, channelization, widening, etc.

• A PEER includes the review of the proposed improvements to determine drainage, maintenance, operation, and environmental impacts.

http://www.dot.ca.gov/hq/traffops/developserv/permits/pdf/publications/PEER_booklet.pdf

http://www.dot.ca.gov/hq/traffops/developserv/permits/pdf/publications/PEER_booklet.pdf

State Lands Commission

Calif. Dept. Of Parks And Rec.

Railroads & Indentures (very slow)

City Encroachment Permits

LACFCD Encroachment Permit (A01)

USACOE Encroachment (Dams, E01, & A01)

HOA Encroachments

US Department of Forestry (CNF)

Postmaster Notification

PRELIMINARY ENGINEERING:

Alignment & Grade

Hydraulics (Bruce)

Structures – Material Selection

Design Details

Address Mitigation Measures (If Possible)

Address LID Measures (Scott)

Traffic Detours & Traffic Control Plans

Optional Public Scoping Meeting

Preliminary Engineer’s Estimate

In a recent meeting with the Associated General Contractors (AGC) –representative informed County staff that their membership prefers bidding on agency provided traffic control plans and does not like the option of preparing the plan themselves to reflect their own construction staging.

• Creates a level playing field during project bidding

• Takes the liability away from contractor and places it on agency/engineer

• Makes it easier for contractor to request change orders if plan does not work

• Gives agency greater control over traffic circulation during construction

• Budgetary purposes – to know if you have enough money to construct improvements. You do not want your engineer’s estimate to be the lowest bid!

• Bonding – lets the contractor know the relative size of the job, so he can determine if he has the bonding capabilities to successfully bid the job.

• Gaging the Bids – the engineer’s estimate can also be used as a measuring stick to determine if the contractor’s bid may be too high (gouging) or too low (not a responsible bid).

• Grant Funding – the engineer’s estimate can also be used to assist in securing grant funding for the project.

• Alternative Evaluations – the engineer’s estimate is often used to evaluate project alternatives and conduct value engineering studies.

County Engineer’s Association of Orange County (CEAOC) December 2014 Meeting

15 Recommendations for Conducting More Accurate Engineering Estimates

1. Constructability Reviews – by A/E’s or Contractors

2. Contact Material Suppliers

3. Use of Professional Estimators

4. Use Timely/Recent Construction Cost Data

5. Finalize Engineer’s Estimate Just Prior to Sending Out to Bid (45 Days)

6. Coordinate Bid Openings with Other Agencies and Explore Alt. Advertising Dates

7. Consider Ease or Difficultly of Materials to Disposed of Offsite

8. Consider the Use of Material Escalation Clauses

Presented to the OC Board of Supervisors on October 24, 2006, Agenda Item No. 15


9. Consider the Use of Fuel Escalation Clauses (mass grading efforts)

10. Encourage the Use of Value Engineering or CRIP’s (Section B – Sec.3-6)

11. Consider Elimination of Unnecessary Contract Requirements

12. Consider Flexible Start Dates

13. Eliminate Mandatory Pre-Bid Meetings (Voluntary or Optional)

14. Eliminate Stringent Qualification Requirements (State Licensing – A, B, C)

15. Establish and Maintain Communication with the Industry - AGC

Plan And Profile

Construction Details

Cross Sections

Other: Soil Borings, Alignment, Etc.

Traffic/ Bike Detours (If Needed)

Draft Specifications

Peer Review & Utility 2nd Notice

Plan Review By Other Agencies - Cities

Public Design Seminar

Preliminary Quantity Calcs

Final Design Revisions

Revise/Finalize Plans

Revise/Finalize Specs

Final Quantity Calculations

Final Cost Estimate

Plan Approval/Signatures

In House

Other Agencies

• Before you go to bid – ensure the disposition of all Permits, Utilities, and Right of Way

• After the engineer signs the plans, staff must seek the approval and signature of the City Engineer/City DPW if the project is within a City, or OCFCD/County Chief Engineer if project connects to OCFCD r/w, is in unicorporated County, or is to be dedicated to County/OCFCD.

• We want to have the City Engineer/DPW signature before we go to the Board for approval. This assures our Executive Management and Board that City staff are supportive of the project.

• At the plan signing (or by prior letter), we will ask City staff to take the project to their City Council for approval after the Board approves the PS&E for advertisement for public bids (PCC 21020.9). FLOOD ONLY!!!

21020.9. The plans and specifications for any work proposed to be done, or improvements to be made, under the act, in any municipality in the district shall first be approved by the legislative body of the municipality before the commencement of the work or improvements, and before any contract shall be let therefor; provided, that in the event the legislative body shall refuse or neglect to approve the plans and specifications for the work or improvement within 30 days after being requested by the board of supervisors so to do, then the board of supervisors shall omit the doing of the work or making of the improvements within the municipality, and the omission shall not affect the validity of its proceedings under the act, and the funds which were to be expended for the proposed work or improvement in the municipality may be expended elsewhere by the board of supervisors for carrying out the purposes of the act.



After City Council/Board approval to advertise:Send Utility - Notice To RelocateFile NOD or NOETransmit project to your Construction Section (if you have one)

Bulletins & Addenda – documents issued before opening of bids to reflect changes in the PS&E

Bulletins: Less Than 5% Or $5,000

Addenda: Issued by BOS To Reflect Major Change In Project Scope Greater Than 5% Or $5,000

Publish/advertise project per Section 22037 of the Public Contract Code22037. Notice inviting formal bids shall state the time and place for the receiving and opening of sealed bids and distinctly describe the project. The notice shall be published at least 14 calendar days before the date of opening the bids in a newspaper of general circulation, printed and published in the jurisdiction of the public agency …

Public Facilities and Resources Department

P.O. Box 4048 Santa Ana, California 92702-4048

N O T I C E O F E X E M P T I O N TO: OFFICE OF PLANNING AND RESEARCH COUNTY CLERK 1400 TENTH STREET, ROOM 121 COUNTY OF ORANGE SACRAMENTO, CALIFORNIA 95814

Project Title

Project Location - City

Project Location - County

Orange County Description of Nature, Purpose, and Beneficiaries of Project

Name of Public Agency Approving Project

Orange County Board of Supervisors Name of Person or Agency Carrying Out Project

Exempt Status; (Check One)

Ministerial (Sec. 15268)

Declared Emergency (Sec. 15269 (a))

Emergency Project (Sec. 15269 (a) & (b))

Categorical Exemption. State type and section number (Section 15301 Class 1) Reason why project is exempt

Contact Person Area Code Telephone

If filed by applicant: 1. Attach certified document of exemption finding 2. Has a notice of exemption been filed by the public agency approving the project? Yes No Signature: Date: Title:

Form #13

Exempt per Government Code Section 6103

NOTICE OF DETERMINATION TO: OFFICE OF PLANNING AND RESEARCH COUNTY CLERK 1400 TENTH STREET, ROOM 121 COUNTY OF ORANGE SACRAMENTO, CALIFORNIA 95814 FROM: SUBJECT: Filing of Notice of Determination in Compliance with Section 21108 or 21152 of the Public

Resources Code Project Title: Type of Environmental Doc.(EIR, Addendum, ND, etc.)

State Clearinghouse Number (If submitted to State Clearinghouse)

Project Contact Person: Telephone: CEQA Contact Person: Telephone: Project Location:

Project Description:

Notice is hereby given that the ( Lead Agency / Responsible Agency) (Lead District, Division, Section, etc.) has made the following determination on the above-described project: 1. The project was approved by: The Board of Supervisors on: 2. The project will have a significant effect on the environment. will not

An Environmental Impact Report was prepared for this project pursuant to the provisions of CEQA

A Negative Declaration was prepared for this project pursuant to the provisions of CEQA. 3. Mitigation Measures were incorporated into the project through conditions of approval and project design. were not 4. For this project a statement of Overriding considerations was adopted. not adopted. 5. Findings were Made pursuant to CEQA Guidelines 15091 (Statement of Facts and Findings). were not 6. A copy of the EIR or Negative Declaration and the record of the project approval is on file and may be examined at the PDSD,

Environmental and Project Planning Services Division, 300 N. Flower St., Ste. 321, Santa Ana, CA 92702-4048, (714)834-5550. Signature: Date: Title:

County of Orange, OC Public Works

The Eureka Reporter (the Reporter) was a newspaper established in 2004. In 2007, its publisher, Judi Pollace, petitioned the trial court to acknowledge the Reporter as a newspaper of general circulation. The petition asserted, without any evidence, that the Reporter had "a bona fide subscription list of paying subscribers" within Humboldt County. The motion was opposed by the Eureka Times Standard and alleged that the Reporter was a free newspaper which did not have the requisite list of paying subscribers. Pollace responded by asserting that the Reporter had a "voluntary pay program" where readers could contribute money to offset the cost of home delivery. Further, she alleged that this group of readers constituted the "bona fide list of paying subscribers." Following a hearing, Pollace's petition was granted and the court entered a judgment declaring the Reporter a newspaper of general circulation in the county.

Appellate Court’s ruling: Reversed lower Court

Government Code Section 6000 defines a "newspaper of general circulation" as one with a "bona fide subscription list of paying subscribers." Using the common sense meaning of the term, a "subscriber" is one who "contracts to receive and pay for a certain number of issues of publication." Here, the program participants have not contracted to pay for issues of the Reporter and are instead engaging in a form of sponsorship. Further, the plain meaning of "subscription list" is "a purchase by prepayment of a periodical's future issues." Here, participants received the Reporter for at least three months prior to contributing and did not agree to anything. Thus, it is not a newspaper of general circulation. Opinion by Justice Jones.

Recent 1st District Court of Appeals ruling on Publication of Legal Notices

The process to award the project to the Lowest Responsible and Responsive Bidder (Public Agencies only)

Section 20128 of the CA Public Contract Code: The board shall award the contract to the lowest responsible bidder…Responsive vs. ResponsibleBefore reviewing cases regarding “responsible bidders,” let’s clarify the terms responsive and responsible. A California Court of Appeal case provided a good definition of the difference between responsive and responsible. The court said “a bid is ‘responsive’ if it promises to do what the bidding instructions demand; a bidder is ‘responsible’ if it can perform the contract as promised.”

In other words, in determining whether a bid is responsive, an awarding body (agency) should look at whether or not the bid offered meets the prescribed specifications, not at how well the bidder will perform. Alternately, in determining whether a bidder is responsible, an agency looks at whether or not the bidder is able to perform as specified, not at whether or not the bid itself meets the specifications.

A determination of non-responsibility seems more difficult than a determination of non-responsiveness only because we don’t often attempt it. However, it still requires an objective (fact-based) judgment versus a subjective (gut-feeling) judgment.

Taylor Bus Services, Inc. v. San Diego Board of Education, Cal.App. 3d 1331 195 (1987), 241 Cal.Rptr. 379.

Valley Crest Landscape, Inc. v. City Council of City of Davis (North Bay Const., Inc.) 41 Cal.App. 4th 1432, modified on denial of rehearing (1996).

Bids are responsive. Bidders are responsible.

Prior to Recommending the Project for Award to your Council or Board, we should determine that:

• The low bid submitted is not Unbalanced

• No collusion took place during the bid process

• Bids submitted comply with the Engineer’s Estimates

• Apparent low bidder’s Bid Proposal Forms are checked for mathematical accuracy to ensure no accounting mistakes were made by the Engineer and/or the bidder

Construction fatalities rose to 874 in 2014 from 828 in 2013.

• Fatally-injured contracted workers were most often contracted by a firm in the private construction industry sector (164 or 21 percent of all contracted workers).

• Of work place fatalities in calendar year 2013, 828 or 20.2% were in construction―that is, one in five worker deaths last year were in construction.

• Falls — 302 out of 828 total deaths in construction in 2013 (36.5%)• Struck by Object — 84 (10.1%)• Electrocutions — 71 (8.6%)• Caught-in/between — 21 (2.5%)

• The number of fatal work injuries in construction in 2014 was the highest reported total since 2008.

These "Fatal Four" were responsible for more than half (57.7%) the construction worker deaths in 2013, BLS reports. Eliminating the Fatal Four would save 478 workers' lives in America every year

• The leading causes of worker deaths on construction sites were falls, followed by struck by object, electrocution, and caught-in/between.

According to the National Institute for Occupational Safety and Health:

• From 2000-2009, 350 workers died in trenching excavation cave-in incidents or an average of 35 workers a year.

• Most incidents involve excavation for stormwater, water, sewer, telecommunication, or other utilities where 64% of the deaths occurred at depths less than 10 feet.

• Lack of protective systems was the leading cause of trench fatalities in a review of OSHA inspections.

OSHA Technical Manual: Excavations: Hazard Recognition in Trenching and Shoring

Tension Cracks. Tension cracks usually form at a horizontal distance of 0.5 to 0.75 times the depth of the trench, measured from the top of the vertical face of the trench. See the accompanying drawing for additional details.

Sliding or sluffing may occur as a result of tension cracks, as illustrated below.

Toppling. In addition to sliding, tension cracks can cause toppling. Toppling occurs when the trench's vertical face shears along the tension crack line and topples into the excavation.

A number of stresses and deformations can occur in an open cut or trench. For example, increases or decreases in moisture content can adversely affect the stability of a trench or excavation. The following diagrams show some of the more frequently identified causes of trench failure.

Subsidence and Bulging. An unsupported excavation can create an unbalanced stress in the soil, which, in turn, causes subsidence at the surface and bulging of the vertical face of the trench. If uncorrected, this condition can cause face failure and entrapment of workers in the trench.

Heaving or Squeezing. Bottom heaving or squeezing is caused by the downward pressure created by the weight of adjoining soil. This pressure causes a bulge in the bottom of the cut, as illustrated in the drawing above. Heaving and squeezing can occur even when shoring or shielding has been properly installed.

Boiling is evidenced by an upward water flow into the bottom of the cut. A high water table is one of the causes of boiling. Boiling produces a "quick" condition in the bottom of the cut, and can occur even when shoring or trench boxes are used.

OSHA Technical Manual: Excavations: Hazard Recognition in Trenching and Shoring

Shoring TypesShoring is the provision of a support system for trench faces used to prevent movement of soil, underground utilities, roadways, and foundations. Shoring or shielding is used when the location or depth of the cut makes sloping back to the maximum allowable slope impractical. Shoring systems consist of posts, wales, struts, and sheeting. There are two basic types of shoring, timber and aluminum/steel hydraulic and pneumatic.

Hydraulic ShoringThe trend today is toward the use of hydraulic shoring, a prefabricated strut and/or wale system manufactured of aluminum or steel. Hydraulic shoring provides a critical safety advantage over timber shoring because workers do not have to enter the trench to install or remove hydraulic shoring. Other advantages of most hydraulic systems are that they:

• Are light enough to be installed by one worker;

• Are gauge-regulated to ensure even distribution of pressure along the trench line;

• Can have their trench faces "preloaded" to use the soil's natural cohesion to prevent movement; and

• Can be adapted easily to various trench depths and widths.

Pneumatic Shoringworks in a manner similar to hydraulic shoring. The primary difference is that pneumatic shoring uses air pressure in place of hydraulic pressure. A disadvantage to the use of pneumatic shoring is that an air compressor must be on site.

Screw Jacks. Screw jack systems differ from hydraulic and pneumatic systems in that the struts of a screw jack system must be adjusted manually. This creates a hazard because the worker is required to be in the trench in order to adjust the strut. In addition, uniform "preloading" cannot be achieved with screw jacks, and their weight creates handling difficulties.

Single-Cylinder Hydraulic Shores. Shores of this type are generally used in a water system, as an assist to timber shoring systems, and in shallow trenches where face stability is required.

Underpinning. This process involves stabilizing adjacent structures, foundations, and other intrusions that may have an impact on the excavation. As the term indicates, underpinning is a procedure in which the foundation is physically reinforced. Underpinning should be conducted only under the direction and with the approval of a registered professional engineer.

Timber Shoring

Pneumatic, Hydraulic, and Screw Jacks

Aluminum Hydraulic Shoring Illustration of Timber Shoring

Trench Boxes are different from shoring because, instead of shoring up or otherwise supporting the trench face, they are intended primarily to protect workers from cave-ins and similar incidents. The excavated area between the outside of the trench box and the face of the trench should be as small as possible. The space between the trench boxes and the excavation side are backfilled to prevent lateral movement of the box. Shields may not be subjected to loads exceeding those which the system was designed to withstand.

Table V:2-1. Allowable Slopes

Soil type Height/Depth ratio Slope angleStable Rock Vertical 90°Type A ¾:1 53°Type B 1:1 45°Type C 1½:1 34°Type A(short-term) ½:1 63°(For a maximum excavation depth of 12 ft)

Maximum allowable slopes for excavations less than 20 ft (6.09 m) based on soil type and angle to the horizontal are as follows:

This figure illustrates how a support or shield system can be used in Type A soil. The slope alongside it is 18" minimum, 20' maximum, with a 1/0.75 slope.

This figure illustrates how a support or shield system can be used in Type B soil. The slope alongside it is 18" minimum, 20' maximum, with a 1/1 slope.

This figure illustrates how a support or shield system can be used in Type C soil. The slope alongside it is 18" minimum, 20' maximum, with a 1/1.5 slope.

Stable Rock is natural solid mineral matter that can be excavated with vertical sides and remain intact while exposed. It is usually identified by a rock name such as granite or sandstone. Determining whether a deposit is of this type may be difficult unless it is known whether cracks exist and whether or not the cracks run into or away from the excavation.

Type A Soils are cohesive soils with an unconfined compressive strength of 1.5 tons per square foot (tsf) (144 kPa) or greater. Examples of Type A cohesive soils are often: clay, silty clay, sandy clay, clay loam and, in some cases, silty clay loam and sandy clay loam. (No soil is Type A if it is fissured, is subject to vibration of any type, has previously been disturbed, is part of a sloped, layered system where the layers dip into the excavation on a slope of 4 horizontal to 1 vertical (4H:1V) or greater, or has seeping water.

Type B Soils are cohesive soils with an unconfined compressive strength greater than 0.5 tsf (48 kPa) but less than 1.5 tsf (144 kPa). Examples of other Type B soils are: angular gravel; silt; silt loam; previously disturbed soils unless otherwise classified as Type C; soils that meet the unconfined compressive strength or cementation requirements of Type A soils but are fissured or subject to vibration; dry unstable rock; and layered systems sloping into the trench at a slope less than 4H:1V (only if the material would be classified as a Type B soil).

Type C Soils are cohesive soils with an unconfined compressive strength of 0.5 tsf (48 kPa) or less. Other Type C soils include granular soils such as gravel, sand and loamy sand, submerged soil, soil from which water is freely seeping, and submerged rock that is not stable. Also included in this classification is material in a sloped, layered system where the layers dip into the excavation or have a slope of four horizontal to one vertical (4H:1V) or greater.

Layered Geological Strata. Where soils are configured in layers, i.e., where a layered geologic structure exists, the soil must be classified on the basis of the soil classification of the weakest soil layer. Each layer may be classified individually if a more stable layer lies below a less stable layer, i.e., where a Type C soil rests on top of stable rock.

OSHA Technical Manual – Excavations: Hazard Recognition in Trenching & Shoring

This figure illustrates the types of excavations made in Type A soil: Two types use an unsupported vertically sided lower portion (with maximum depths of 8 Feet and 12 Feet), and the three remaining types include single bench excavation, simple slope - short term, and multiple bench excavation

Cal OSHA Trench Requirements

Cal OSHA Figure V:2-13. Slope Configurations: Excavations in Layered Soils

From OC Public Works Construction Staff

• Where constructing storm drains with very mild (flat) slopes, they highly recommend the use of waterproofing seals for the RCP joints. One such product is “MacWrap”. Flatter storm drains tend to have sags and ponding within the pipeline.

• Observe County Ordinance 6-3-69 which states that all pipelines (top of pipe) must be at least 30” under the surface of a roadway, and recommend that top of pipe be at least the roadway structural section plus 6” whichever is greater.

• Always utilize shoring for cuts over five feet.

• Always follow the local jurisdiction’s pipe bedding standards – for OC, OCPW Std. Plan 1319 or design per the American Concrete Pipe Association

Anatomy of a Storm Drain Reinforced Concrete Pipe (RCP)

Flowline (FL) and Gradeline (GL)

Spring Line

Outside Diameter (O.D.)

Inside Diameter (I.D.)

Hau

nch

Top

Crown

What is a pipe trench and what is pipe bedding?

W = 6” (min.) for up to 8 ft of cover, 10” (min.) above 8 ft, and 12” (min.) for pipes 96” Dia. or greater plus shoring thickness.

American Concrete Pipe Association – Std. Trench/Embankment Installation

Class 0.01 inch Crack D-load (lbs/ft/ft)

Ultimate D-load

(lbs/ft/ft)IIIIIIIVV

8001000135020003000

12001500200030003750

Reinforced Concrete Pipe

Typical Storm Drain

*

30” (min.) County Code Section 6-3-69

When height of fill (cover) exceeds 20 feet, min.

height or diameter of storm drain is 60”.

SPRING LINE

OCLDM: Width of a public storm drain easement = The distance from the springline of the conduit to the

ground level times 0.75 times 2. (Minimum storm drain easement shall be 10 feet.)

H

1

¾

We = H x 0.75 x 2Ground Level

Typical Storm Drain: RCP or

RCB

Where maintenance is accomplished from inside

conduit (60” dia. min.)

Surface Maintenance:

D

We = D + 2’

D = Outside Diameter

*

* Note Potential conflict: Minimum bedding width is 6” – 12” (depending on cover or pipe dia.) + Shoring width

*

OCRDMD Standard Plan 1319

Unfortunately, this assumes that we have Type A soil

STORM DRAINS

GARDEN GROVE STORM DRAIN

• For projects that disturb one or more acres, or

Projects less than one acres but are part of a larger project that disturbs more than one acre

• Does not include regular maintenance activities performed to restore original line, grade or capacity of a facility

• Requires the development of an NOI, SWPPP, & NOT

• SWPPP must contain – visual monitoring program, chemical monitoring program, and sediment monitoring program if project discharges to facility listed on 303(d) list for impaired water bodies.• Permit requires Contractor/owner to implement BMP’s, monitoring, and sampling during the construction project.

http://www.swrcb.ca.gov/water_issues/programs/stormwater/gen_const.shtml#const_permit

http://www.swrcb.ca.gov/water_issues/programs/stormwater/gen_const.shtml#const_permit

• California is also governed under the Porter-Cologne Water Quality Control Act of 1969. Many sections of the 1972 Federal CWA were taken from this Act

• This law assigns overall responsibility for water rights and water quality protection to the SWRCB and directs the nine regional boards to develop and enforce water quality standards within their boundaries to protect beneficial uses

• California recognizes 23 designated beneficial uses, and current policy defines an existing use as one that has occurred since November 28, 1975

State-Designated Use Code

State-Designated Use

State-Designated Use Description

MUN Municipal and Domestic Supply

Uses of water for community, military, or individual water supply systems including, but not limited to, drinking water supply.

AGR Agricultural Supply Uses of water for farming, horticulture, or ranching including, but not limited to, irrigation, stock watering, or support of vegetation for range grazing.

PRO Industrial Process Supply

Uses of water for industrial activities that depend primarily on water quality.

IND Industrial Service Supply

Uses of water for industrial activities that do not depend primarily on water quality including, but not limited to, mining, cooling water supply, hydraulic conveyance, gravel washing, fire protection, or oil well repressurization.

GWR Groundwater Recharge

Uses of water for natural or artificial recharge of groundwater for purposes of future extraction, maintenance of water quality, or halting of saltwater intrusion into freshwater aquifers.

FRSH Freshwater Replenishment

Uses of water for natural or artificial maintenance of surface water quantity or quality (e.g., salinity).

NAV Navigation Uses of water for shipping, travel, or other transportation by private, military, or commercial vessels.

POW Hydropower Generation

Uses of water for hydropower generation.

REC-1 Water Contact Recreation

Uses of water for recreational activities involving body contact with water, where ingestion of water is reasonably possible. These uses include, but are not limited to, swimming, wading, water-skiing, skin and scuba diving, surfing, white water activities, fishing, or use of natural hot springs.

REC-2 Noncontact Water Recreation

Uses of water for recreational activities involving proximity to water, but not normally involving body contact with water where ingestion of water is reasonably possible. These uses include, but are not limited to, picnicking, sunbathing, hiking, beachcombing, camping, boating, tidepool and marine life study, hunting, sightseeing, or aesthetic enjoyment in conjunction with the above activities.

COMM Ocean Commercial and Sport Fishing

Uses of water for commercial or recreational collection of fish, shellfish, or other organisms including, but not limited to, uses involving organisms intended for human consumption or bait purposes.

AQUA Aquaculture Uses of water for aquaculture or mariculture operations including, but not limited to, propagation, cultivation, maintenance, or harvesting of aquatic plants and animals for human consumption or bait purposes.

WARM Warm Freshwater Habitat

Uses of water that support warmwater ecosystems including, but not limited to, preservation or enhancement of aquatic habitats, vegetation, fish, or wildlife, including invertebrates.

COLD Cold Freshwater Habitat

Uses of water that support cold water ecosystems including, but not limited to, preservation or enhancement of aquatic saline habitats, vegetation, fish, or wildlife, including invertebrates.

SAL Inland Saline Water Habitat

Uses of water that support inland saline water ecosystems including, but not limited to, preservation or enhancement of aquatic saline habitats, vegetation, fish, or wildlife, including invertebrates.

EST Estuarine Habitat Uses of water that support estuarine ecosystems including, but not limited to, preservation or enhancement of estuarine habitats, vegetation, fish, shellfish, or wildlife (e.g., estuarine mammals, waterfowl, shorebirds).

MAR Marine Habitat Uses of water that support marine ecosystems including, but not limited to, preservation or enhancement of marine habitats, vegetation such as kelp, fish, shellfish, or wildlife (e.g., marine mammals, shorebirds)

WILD Wildlife Habitat Uses of water that support terrestrial ecosystems including, but not limited to, preservation and enhancement of terrestrial habitats, vegetation, wildlife (e.g., mammals, birds, reptiles, amphibians, invertebrates), or wildlife water and food sources.

BIOL Preservation of Biological Habitats of Special Significance

Uses of water that support designated areas or habitats, such as established refuges, parks, sanctuaries, ecological reserves, or Areas of Special Biological Significance (ASBS), where the preservation or enhancement of natural resources requires special protection.

RARE Rare, Threatened, or Endangered Species

Uses of water that support habitats necessary, at least in part, for the survival and successful maintenance of plant or animal species established under state or federal law as rare, threatened or endangered.

MIGR Migration of Aquatic Organisms

Uses of water that support habitats necessary for migration or other temporary activities by aquatic organisms, such as anadromous fish.

SPWN Spawning, Reproduction, and/or Early Development

Uses of water that support high quality aquatic habitats suitable for reproduction and early development of fish.SHELL Shellfish Harvesting Uses of water that support habitats suitable for the collection of filter-feeding shellfish (e.g., clams, oysters, and mussels) for human consumption, commercial, or sports purposes.

Old MS4 Permit New MS4 Permit

Low impact development requirements for priority development and redevelopment are part and parcel of the new MS4 permit. The idea is to treat or capture the runoff produced from a 24-hour, 85th percentile storm event(design capture volume). There are four (4) accepted strategies for implementation of LID principles, and they must be implemented or excluded (must make a finding of infeasibility) in the following order:

1. Infiltration into the groundwater table (many limitations)

2. Harvest and Re-use

3. Evapotransporation – transpiration from plants and evaporation

4. Capture and Retention (not detention) of the Volume

There are some alternatives and in-lieu programs, but they are tough and not fully developed

Order No. R8-2009-030 (NPDES No. CAS 618030)

Section XII.B.2.h. – “Streets, roads, highways and freeways of 5,000 SF or more of paved surface shall incorporate USEPA guidance, “Managing Wet Weather with Green Infrastructure: Green Streets,” in a manner consistent with the maximum extent practicable standard. This category includes any paved surface used for the transportation of automobiles, trucks, motorcycles and other vehicles and excludes any routine maintenance activities where the footprint is not changed.

Section XIV.9. – The permittees shall ensure that their flood management processes and projects do not contribute pollutants to receiving water to the MEP.

• Both MS4 permits require the permittees to reduce discharge of pollutants in storm water runoff to the maximum extent practicable.

• MEP is known as a dynamic performance standard (one which is constantly evolving over time)

• The Region 9 MS4 permit states, “Since MEP is a dynamic performance standard, which evolves over time as runoff management knowledge increases, the Copermittees’ runoff management programs must continually be assessed and modified to incorporate improved programs, control measures, BMPs, etc. in order to achieve the evolving MEP standard.

Order No. R9-2009-0002 (NPDES No. CAS 0108740)

Section F.1.d.(2)(g). – “Streets, roads, highways and freeways. This category includes any paved surface that is 5,000 SF or greater used for the transportation of automobiles, trucks, motorcycles and other vehicles.

Section F.3.a.(4). –

(4) BMP implementation for Flood Control Structures(a) Each Copermittee must implement procedures to assure that flood

management projects assess the impacts on the water quality of receivingwater bodies.

(b) Each Copermittee must include water quality protection measures, wherefeasible, when retrofitting existing flood control structural devices.

Section F.1.c.(6)(g). - Infiltration treatment control BMPs must not be used for areas of industrial or light industrial activity; areas subject to high vehicular traffic (25,000 or greater average daily traffic on main roadway or 15,000 or more average daily traffic on any intersecting roadway); automotive repair shops; car washes; fleet storage areas (bus, truck, etc.); nurseries; and other high threat to water quality land uses and activities as designated by each Copermittee unless first treated or filtered to remove pollutants prior to infiltration and a comprehensive site-specific evaluation has been conducted; and …

• Both Region 8 & 9: New development projects that create equal to or greater than 10,000 square feet of impervious surface. Region 9 only: All pollutant generating development or redevelopment creating a disturbance of one acre or more.

• Both: Auto repair shops

• Both: Restaurant development 5,000 SF or more (includes parking). Region 9 only: All restaurant development less than 5,000 SF shall meet WQMP requirements except for LID, hydromod, and treatment control BMPs.• Hillside development greater than 5,000 SF, natural slope, s > 25% or known erosive soil conditions.

• Both: Development greater than 2,500 SF that drains to environmentally sensitive habitat or is within 200 feet. Region 9: A project with an increase in impervious area by 10% or more of its naturally occurring condition located within 200 feet or drains directly to environmentally sensitive areas.

• Both: Parking lots greater than or equal to 5,000 SF including associated drive isles. Region 9 only: parking lots of 15 spaces or more.

• Both: Streets, roads, highways, and/or freeways, 5,000 SF or more.

• Region 8 only: Redevelopment (addition to or replacement of) 5,000 SF or more of impervious surface on an already developed site. Does not include: routine maintenance to maintain original line and grade, hydraulic capacity, original purpose of facility, or emergency activities to protect health and safety.

Region 9 only: Redevelopment (addition to or replacement of) 5,000 SF or more of impervious surface on an already developed site or project falls under another Priority Project Category.

Both: If redevelopment results in less than 50% of site impervious area and project was not subject to WQMP requirements, the numeric sizing criteria only applies to addition or replacement area. If greater than 50%, WQMP requirements apply to entire development.

• Retail Gasoline Outlets of 5,000 SF or more, or serve more than 100 vehicles/day.

Source Control BMPs

Prevent pollution by reducing potential pollutants at their source. Parking lot sweeping is an example of litter source control. Litter is removed from the parking lot, which reduces the amount of litter that may enter the storm drain system.

Treatment Control BMPs

BMPs that remove pollutants from storm water. Catch basin inserts and trash booms that remove litter from storm water are examples of treatment control BMPs. Treatment controls usually require extensive maintenance.

Old MS4 Permit New MS4 Permit

MS4 Permit Model WQMP submittal to R8 – March 22, 2011

Model WQMP R8 Board Hearing – April 22, 2011

What activities are covered by the new permit?

Any construction or demolition activity, including, but not limited to, clearing, grading, grubbing, or excavation, or any other activity that results in a land disturbance of equal to or greater than

one (1) acre.

A land disturbance less than one acre but part of a larger common plan of development is also covered under this permit.

Routine maintenance to maintain original line and grade, hydraulic capacity, or original purpose of the facility.

Disturbances to land surfaces solely related to agricultural operations such as disking, harrowing, terracing and leveling, and soil preparation.

Tribal Lands

Lake Tahoe has a special permit through the Lohantan Regional Water Board

Land disturbances less than one acre

Construction covered under an individual NPDES permit

Landfills covered under the Industrial General Permit

Construction activity that discharges to Combined or Municipal Sewer Systems

Oil, gas, and mining operations

What is exempt from this permit?

• The CGP is a statewide permit issued by the State Water Resources Control Board.

• The CGP was not developed or customized by each Regional Board like the MS4 Stormwater Permits.

• Therefore, it is the same for each Region and is enforced by each Regional Board.

• Previous permit expired in 2004.

• The new permit had been under review and revision since 2006.

• New permit was formally adopted on September 2nd, 2009.

• New permit became effective on July 1st, 2010.

• New permit will expire September 2nd, 2014.

• New permit was adopted as Order No. 2009-0009-DWQ, NPDES No. CAS000002.

Significant differences from the last permit:

• Linear Underground/Overhead Utility Projects requirements

• Risked based Permitting Approach: Risk Levels 1, 2, or 3

• Technology – Based Numeric Action Levels (NALs) – corrective action warning levels

• Technology – Based Numeric Effluent Limitations – exceedance is a violation

• Best Management Practices – more specific controls and requirements

• Effluent Monitoring and Reporting – for pH and turbidity (1/2 inch rainfall limit)

• Receiving Water and Bioassessment Monitoring and Reporting (Risk Level 3)

• Post-Construction Stormwater Performance Standards – MS4 Permit requirements

• Rain Event Action Plan (REAP) – Risk Level 2 and 3 sites – 48hrs prior to rain event

• Certification and Training – QSP/QSD certification

• Rainfall Erosivity Waiver – for small projects between 1 to 5 acres

An article from the North Bay Business Journal which is distributed in Sonoma, Marin, and Napa Counties written by Jeff Quackenbush touts the permit as:

“Meet these requirements or else!”

We have gone from:

Do your best (enforcement driven by field observations).

To:

Meet these standards or pay fines (enforcement can occur by review of electronically submitted documentation and field reports – Hang Yourself!!!).

Fines: $10/gallon (discharges that exceed 1,000 gal.) and/or $10,000/day

Mandatory Minimum Penalty of $3,000 when there are four (4) Effluent Limitation Violations in a six (6) month period

All permit documentation must now be submitted electronically through what the State has named the SMART system

Stormwater Multi Application and Report Tracking System

New permit combats two main pollutant factors:pH, andTurbidity

Turbidity - increases temperature, decreases light, makes it hard for aquatic animals like fish to breath, and sediment is a known transporter of pollutants

Toxics – Oil and Grease can latch on to sediment, toxicity to aquatic organisms, reduces light to subsurface ecosystem

pH – measure of water acidity, can be a measure of dissolved oxygen in the water

• New permit requires control of pollutants by utilizing the best available technology that is economically achievable (BAT) to control toxic pollutants

• New permit requires control of pollutants by utilizing best conventional pollutant control technology (BCT) for conventional pollutants

CGP – utilizes a new Risk Level based approach:

The approach is broken into three steps:1. Project Sediment Risk – relative amount of sediment that may be discharged2. Receiving Water Risk – the risk sediment discharges may pose to the

receiving waters3. Overall Risk

To determine your project Risk Type, you must first determine your rate of sheet and rill erosion per the Revised Universal Soil Loss Equation (RUSLE)

A = (R)(K)(LS)(C)(P)Where: A = the rate of sheet and rill erosion (tons/acre)R = rainfall runoff erosivity factor (EPA calculator:

http//cfpub.epa.gov/npdes/stormwater/lew/lewcalculator.cfm)K = soil erodibility factor (SMARTS on-line tool)LS = length slope factor (SMARTS on-line tool or site specific calculation)C = cover factor (erosion controls – permit requires this number to be 1.0)P = management operations and support practices (sediment controls – 1.0)A < 15 Low Sediment Risk15 < A < 75 Medium Sediment RiskA > 75 High Sediment Risk

Next step is to determine if you are discharging into a sensitive water body: 3 tests:

1. Test for beneficial uses of COLD, SPAWN, and MIGRATORY2. Test for CWA 303(d) listed water bodies3. Test for water bodies with a TMDL for sediment, silt, or turbidity

COLD Cold Freshwater Habitat

Uses of water that support cold water ecosystems including, but not limited to, preservation or enhancement of aquatic saline habitats, vegetation, fish, or wildlife, including invertebrates.

MIGR Migration of Aquatic Organisms

Uses of water that support habitats necessary for migration or other temporary activities by aquatic organisms, such as anadromous fish.

SPWN Spawning, Reproduction, and/or Early Development

Uses of water that support high quality aquatic habitats suitable for reproduction and early development of fish.SHELL Shellfish Harvesting Uses of water that support habitats suitable for the collection of filter-feeding shellfish (e.g., clams, oysters, and mussels) for human consumption, commercial, or sports purposes.

• California’s Global Warming Solutions Act of 2006 (AB32) set a series of policies and programs across all major sectors to return California emissions to 1990 levels by 2020. GHG – Greenhouse Gases

• The Cap and Trade Program caps (GHG) emissions from key sectors in California, ensuring that AB32 GHG reductions are met.

• The California Air Resources Board updates a Scoping Plan every 5 years to outline California's strategy to meet AB32 goals.

• The Program sets maximum, statewide GHG emissions for all covered sectors each year (the “cap”), and allows covered entities to sell off allowances (An allowance is a tradable permit that allows the emission of one metric ton of CO2e.) that they do not need (the “trade”).

• In April of 2015, Gov. Jerry Brown issued an additional emissions reductions target of 40% below 1990 levels by 2030.

The off-road regulation’s performance requirements are based on a fleet’s average NOx emissions. If a fleet cannot meet the NOx fleet average target, it must comply with the regulation’s Best Available Control Technology (BACT) requirements by cleaning up 5 to 10 percent of its fleet each year it cannot meet the target. A fleet may satisfy the BACT requirements either by turnover or applying exhaust retrofits.

The off-road regulation as initially adopted requires reporting and labeling, limits unnecessary idling, and requires disclosure of the regulation upon vehicle sale. These requirements are not affected by the December 2010 amendments, and enforcement actions for these requirements are ongoing, with fines of up to $10,000 per day possible for each vehicle that is in violation.

Engineer’s Estimates

As the word implies, “estimating” is not an exact science.

Engineer’s Estimates should be a reasonable estimate of the probable costs of the work to be performed by a contractor.

Estimates should never be artificially reduced to try and match a contractor’s low bid, to stay within funding limits, or to make available more funding for other projects.

An Engineer’s Estimate should never be a guess at what the lowest bidder’s/contractor’s bid might possibly be.

Engineer’s Estimates change over time just like a contractor’s bid.

• Budgetary purposes – to know if you have enough money to construct improvements. You do not want your engineer’s estimate to be the lowest bid! (or the highest bid either).

• Bonding – lets the contractor know the relative size of the job, so he can determine if he has the bonding capabilities to successfully bid the job.

• Gaging the Bids – the engineer’s estimate can also be used as a measuring stick to determine if the contractor’s bid may be too high (gouging) or too low (not a responsible bid).

• Grant Funding – the engineer’s estimate can also be used to assist in securing grant funding for the project.

• Alternative Evaluations – the engineer’s estimate is often used to evaluate project alternatives and conduct value engineering studies.

And, many times private engineering consultants’ estimates will be inflated (higher) because the fallout or liability of construction bids coming in lower than a higher estimate is far less than that of construction bids coming in higher than a low estimate (of which the agency’s budget was likely based).

Many times OC Public Works will hire specialized engineering consultants to assist our staff in preparing engineering estimates.

It is usually easier to have more funding than what is required than to search for additional funding that may or may not be available.


It is highly unlikely for the Engineer’s Estimate to match a project’s lowest bid, and it is virtually impossible for all bidders to submit bids that are exactly the same.If you have ten (10) bidders on a project, and ten different bids, which bidder’s bid was the correct one?

Is the lowest bid always the best bid?

Engineer’s EstimatesThat’s why we use the Engineer’s Estimate as a measuring stick to ensure that a submitted low bid appears reasonable.

An unusually low bid, as compared to the Engineer’s Estimate, may signal that the contractor made an estimating error in his bid, did not consider all the project factors, does not possess the required experience and expertise to submit a more informed bid, or is betting on the County allowing him a cheaper material substitution. This situation can be easily recognized if all the other bids submitted are significantly higher.

A much lower bid may also be the product of the contractor’s ingenuity, fierce competitor competition, or an inaccurate Engineer’s Estimate.

An inaccurate Engineer’s Estimate can usually/easily be identified by a project that has a large number of bids and the Engineer’s Estimate is significantly lower or higher than all the bids.

Engineer’s EstimatesEngineer’s Estimates evolve over the life of a project.

During project inception, alternatives analyses, and project scoping, estimates for the project are generally very rough and unrefined.

As a project proceeds from preliminary design to final design, cost estimates are refined.

A final Engineer’s Construction Cost Estimate is usually based on the final material quantity take offs or final bid item quantities just prior to public advertisement of the project.

These more unrefined estimates are commonly used for budgetary purposes, grant funding, and selection of project alternatives.


A thorough, high level Engineer’s Estimate takes into account the following:

• Constructability – ease or difficulty (complexity) of construction

• Material availability – scarcity will affect cost

• Current construction cost data

• How busy are the Contractors and how attractive is the job? Competition.

• Quantity of materials to be exported or disposed of offsite – availability of disposal sites and cost of disposal

• Escalating material costs – fluctuating market for your project’s primary materials

• Fluctuating or escalating fuel costs

Engineer’s Estimates• Construction period – shorter construction windows will generally escalate

bids• Stringent experience or qualification requirements – DBE requirements

• Non-standard bid items or bid items that require additional understanding and effort on the contractor’s part

• Number of bid items (and their corresponding quantity/contract value) designated as “Specialty” bid items – Self Performance

• Number of bid items designated as “Final” bid items – and the perceived risk by the contractor concerning the quantity’s accuracy.

• Traffic conditions – traffic handling plans

• Regulatory permit requirements and risk of project delays due to the risk/presence of endangered species

• Small versus large bid item quantities – smaller quantities usually higher unit prices


• Separated work areas, scattered work areas, separate construction operations

• Labor intensity of specific work items or confined work areas requiring additional labor intensity – use of shovels as compared to a backhoe

• Geographic location of the jobsite – transportation costs

• Time of the year construction will take place – busy, material scarcity, rain delays …

• Projects requiring night work or work on weekends and holidays


1. Constructability Reviews – by A/E’s or Contractors

2. Contact Material Suppliers

3. Use of Professional Estimators

4. Use Timely/Recent Construction Cost Data

5. Finalize Engineer’s Estimate Just Prior to Sending Out to Bid (45 Days)

6. Coordinate Bid Openings with Other Agencies and Explore Alt. Advertising Dates

7. Consider Ease or Difficultly of Materials to Disposed of Offsite

8. Consider the Use of Material Escalation Clauses

Presented to the OC Board of Supervisors on October 24, 2006, Agenda Item No. 15


9. Consider the Use of Fuel Escalation Clauses (mass grading efforts)

10. Encourage the Use of Value Engineering or CRIP’s (Section B – Sec.3-6)

11. Consider Elimination of Unnecessary Contract Requirements

12. Consider Flexible Start Dates

13. Eliminate Mandatory Pre-Bid Meetings (Voluntary or Optional)

14. Eliminate Stringent Qualification Requirements (State Licensing – A, B, C)

15. Establish and Maintain Communication with the Industry - AGC

Engineer’s Estimates are used to:

• Section 4.4-102 Competitive Bidding – to determine if a contractor’s bid is reasonable

• Section 6.1-103 Use of Prequalification – to determine if a project should utilize prequalification, above a $5 million threshold

• Section 6.4 – Justification of Variance from Engineer’s Estimate -

• An engineer’s estimate is a point in time estimate based on a defined methodology

• County relies on an engineer’s estimate prior to bidding out a project, primarily for budgetary purposes. It is also used to determine which procedures should be used for advertising and awarding a project –such as prequalification.

• Section 6.4 – Justification of Variance from Engineer’s Estimate - (Cont.)

• Bidders use the engineer’s estimate range to determine whether the project is within their capacity to perform and/or their ability to obtain bonds.

• There is no legal requirement that the County prepare an estimate, nor any prohibition of such process.

• Section 6.4-103 Use – A cost estimate should be prepared for all projects regardless of size or complexity.

• Estimates for projects not requiring BOS approval may be completed by contracting department or contracted out

• Estimates requiring BOS approval shall be prepared by an engineer or 3rd

party estimator

• A certified engineer’s estimator should be used for vertical construction.

§6.4-104 Methodology for Preparation

(1) Types of engineer’s estimates:

a. Unit cost line item (bid history); Unit Cost Method of Estimation starts with dividing a construction project into various components or elements for the purpose of cost estimation. Then cost of each of the project’s components or elements are assessed and their cost estimation is calculated. Sum of costs of each project elements gives the total construction cost of the project. The unit cost method of estimation can be used for project design estimates as well as for bid estimates.

b. Cost-based estimating; Cost-Based Estimating is a method to estimate the bid cost for items of work based on estimating the cost of each component to complete the work and then adding a reasonable amount for a contractor’s overhead and profit.

c. Combination;

d. Rough Order of Magnitude (Calculations based on industry standards or data such as cost per SF or cost per acre if and when applicable); and

e. Other.

(2) Methodology/approach should be provided to and reviewed by project staff.

(3) Engineer’s estimates may be provided in-house or contracted out. They should be reviewed and validated by County staff.

(4) When possible, departments should include a secondary review of their engineer’s estimates. This may include other County departments or a contracted professional estimator.

(5) The final engineer’s estimate should be completed within 90 calendar days of authorization to advertise to ensure that estimated figures are not adversely affected by market conditions.

(6) All A-E design agreements should include an engineer’s estimate as part of the A-E’s Scope of Work.

§6.4-105 Bids Above/Below the Engineer’s Estimate

(1) Because it is a point in time estimate, it is common for the engineer’s estimate to deviate from the lowest responsible, responsive bid.

(2) When the bid is either above/below the engineer’s estimate – the bid and the estimate should undergo an additional level of review, depending on the value of the project:

a. If a project is below $100K, the threshold for explaining the difference is 20%. b. If a project is above $100K, but less than $1 Million, the threshold is 10%.c. If a project is greater than $1 Million, the threshold is 7.5%.

(3) This review and justification should be discussed in the background of the ASR.

Operation & Maintenance

• Section 6.5 – Operations and Maintenance

(1) Departments shall ensure that Operations & Maintenance for new facilities have been considered and shall include Operations and Maintenance staff during the planning and design phases of Renovation and New Construction projects. Project operating and maintenance impact estimatesshall include the following:

a. The effect of Infrastructure Replacement and Upgrades required for the facility in the year(s) of occurrence; and

b. Projections and funding plans for direct costs to County departments for maintenance, internal services and utilities.

Operation & Maintenance (cont.)

These O&M considerations and costs shall be included in all public works new construction and renovation projects Agenda Staff Reports (ASR) or as part of an Exhibit to the ASR. The ASR and/or ASR Exhibit should also indicate if any of the following were conducted:

a. Industry standards and other locality approaches were considered prior to initiation of Infrastructure Replacement or Upgrades;

b. Any County attempts at Value Engineering (VE);

c. Any Total Life Cycle Cost Analysis conducted; and/or

d. Development of an O&M manual was included in the Statement of Work (SOW) of the project.

So I became an engineering estimator!!!