The document outlines critical considerations for storm drain projects, emphasizing the need for effective project management to avoid common pitfalls and delays, particularly regarding utility relocations and right-of-way acquisitions. It details the regulatory framework under NEPA and CEQA for environmental compliance, along with procurement procedures for selecting professional services. Additionally, it highlights the importance of comprehensive environmental documentation and proper planning to ensure successful project execution and public safety.

4. 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).

5. 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

6. 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

7. For sake of argument

8. Time & Money Utilities NEPA/CEQA
&
Permits
Right of Way
Death
War Famine Pestilence

9. • 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!

10. Super
Project
Manager
Proper project planning
(AKA: Project Management)
can help us avoid the
common pit falls associated
with storm drain projects.

11. Christopher Columbus

13. 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

14. 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.

15. 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”

16. 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.

17. 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.

19. Long Lead Time Procurements
Environmental Documentation
CEQA, NEPA, or both
California 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

20. 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).

21. 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.

22. 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.

23. Long Lead Time Procurements
Environmental 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

24. 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 Conditions
County/City – encroachment permits

25. 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……

26. Long Lead Time Service Procurements
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”

27. Tide Charts
Metric
Always check for yearly adjustments

28. 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

29. 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.

30. 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.

31. MINIMUM
UTILITY
CLEARANCES
FOR THE CMSD

32. 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

35. 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.

36. ASCE - STANDARD GUIDELINE FOR THE COLLECTION AND DEPICTION
OF EXISTING SUBSURFACE UTILITY DATA (38-02)
UTILITY QUALITY LEVEL ATTRIBUTES
Quality 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 A
Precise 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.

37. Right
of Way
Long Lead Time Service
Procurements
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.

38. AKA: Easement in Gross
AKA: Easement Appurtenant
AKA: Easement Appurtenant
AKA: Prescriptive Easement

39. 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.

40. 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.

41. • 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:

42. 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:

43. 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 else
Judge 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.

44. (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.html
http://www.eminentdomainlaw.net/procedures.html
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=0311567082+1+0+0&WAISaction=retrieve
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=0311567082+0+0+0&WAISaction=retrieve

45. 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

46. Environmental Regulatory Permits
USACOE – Clean Water Act - Section 404 & 10
Individual/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.

47. 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

48. 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
http://www.law.cornell.edu/supct/html/04-1034.ZS.html
Solid Waste Agency of Northern Cook County

49. 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.

50. 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

51. 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)

52. In The Montello, the Supreme Court clarified that “customary modes of trade and
travel 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.
Definition of Navigable-in-Fact
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. at
442.

53. Definition of Navigable-in-Fact
In United States v. Holt State Bank, 270 U.S. 49 (1926), the Supreme Court
summarized 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.

54. In summary, when determining whether a water body qualifies as a “traditional
navigable 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 of
Engineers (Corps) “Clean Water Act Jurisdiction Following the U.S. Supreme
Court’s Decision in US v. Rapanos and Carabell v. USACOE”
Definition of Navigable-in-Fact

55. 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.

56. 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.

57. So, What is this Landmark Rapanos Case?
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.

58. So, What is this Landmark Rapanos Case?
“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.”

59. So, What is this Landmark Rapanos Case?
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

60. So, What is this Landmark Rapanos 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.

61. So, What is this Landmark Rapanos Case?
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, Rapanos
prevailed. 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)

62. So, What is this Landmark Rapanos Case?
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.

63. So, What is this Landmark Rapanos Case?
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

64. 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.

65. So, What is this Landmark Rapanos Case?
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

66. 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.

67. 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 least
seasonally (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 to
determine 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 to
determine if they significantly affect the chemical, physical and biological integrity of
downstream traditional navigable waters
• Significant nexus includes consideration of hydrologic and ecologic factors
US EPA Memorandum following Rapanos Decision June 2007

68. 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…

69. 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.

70. 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, or
Biological nexus – so now only one nexus is needed instead of all three!

71. • 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

72. 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.

73. 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.

74. Environmental Regulatory Permits
USACOE – Clean Water Act - Section 404 & 10
Individual/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.
A Section 404 Permit regulates the discharge of dredged or
fill material into navigable waters or waters of the US,
including wetlands.

75. 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.

76. Environmental Regulatory Permits
USACOE – Clean Water Act - Section 404 & 10
Alternatives Analysis under EPA Section 404(b)(1) Guidelines
Federal Government Permits
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

77. 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 FIELD
SUBJECT: Appropriate Level of Analysis Required for Evaluating Compliance with the Section 404(b)(1) Guidelines Alternatives Requirements

78. “PRACTICABLE”
• From Webster’s Collegiate Dictionary
Possible to practice or perform: feasible.

79. 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

80. 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

81. 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 hearing
and 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/

82. Environmental Regulatory Permits
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)
Federal Government Permits
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)

83. 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.

84. Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Response Operations for Oil and Hazardous Substances
21. Surface Coal Mining Activities
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
45. Repair of Uplands Damaged by Discrete Events
46. Discharges in Ditches
47. [Reserved]
48. Commercial Shellfish Aquaculture Activities
49. Coal Remining Activities
50. Underground Coal Mining Activities
51. Land-Based Renewable Energy Generation Facilities
52. Water-Based Renewable Energy Generation Pilot Projects
Nationwide Permit General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Single and Complete Project
16. Wild and Scenic Rivers
17. Tribal Rights
18. Endangered Species
19. Migratory Bird and Bald and Golden Eagle Permits
20. Historic Properties
21. Discovery of Previously Unknown Remains and Artifacts
22. Designated Critical Resource Waters
23. Mitigation
24. Safety of Impoundment Structures
25. Water Quality
26. Coastal Zone Management
27. Regional and Case-by-Case Conditions
28. Use of Multiple Nationwide Permits
29. Transfer of Nationwide Permit Verifications
30. Compliance Certification
31. Pre-Construction Notification

85. Environmental Regulatory Permits
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
Federal Government Permits

86. 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.

87. USFWS - Endangered Species Act – Section 7
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.

88. USFWS - Endangered Species Act – Section 7
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.

89. USFWS - Endangered Species Act – Section 7
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.

90. USFWS - Endangered Species Act – Section 7
Section 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).

91. 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

92. 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.

93. 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.

94. USFWS - Endangered Species Act – Section 10
A 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.

95. USFWS - Endangered Species Act – Section 10
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.

96. 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.

97. 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/

98. 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.

99. 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, and
c. 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

100. CRWQCB – Section 401 Certification
San Gabriel River/Coyote creek/Carbon Creek
Anaheim Bay/Huntington Harbour/Co-system
Santa Ana River
Newport Bay
Newport Coastal Streams
Los Trancos/Muddy Creek
Laguna Coastal Streams – Laguna Canyon
Dana Point Coastal Streams – Salt Creek
San Juan Creek
Aliso Creek
San Clemente Coastal Streams – M01 & M02
San Mateo Creek

101. Santa Ana Region 8
San Diego Region 9

102. • 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

103. 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

104. 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.

105. 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/

106. 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

107. 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.

108. 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)

109. 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?

110. 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

111. 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/

112. US Coast Guard
Only 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)

113. 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-tax
measure 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.

114. 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

115. 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

117. • 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

118. 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

119. PRELIMINARY ENGINEERING:
Alignment & Grade
Hydraulics (Bruce)
Structures – Material Selection
Design Details
Address Mitigation Measures (If Possible)
Address LID Measures (Scott)

120. 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

121. • 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.

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

124. 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

125. 15 Recommendations for Conducting More Accurate Engineering Estimates
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

126. 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

127. Final Design Revisions
Revise/Finalize Plans
Revise/Finalize Specs
Final Quantity Calculations
Final Cost Estimate
Plan Approval/Signatures
In House
Other Agencies

128. • 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.

129. • 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.
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=03486723809+0+0+0&WAISaction=retrieve

130. After City Council/Board approval to advertise:
Send Utility - Notice To Relocate
File NOD or NOE
Transmit 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 Code
22037. 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 …

131. 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

132. 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

133. 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. Responsible
Before 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.

134. 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

136. 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.

137. 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.

140. 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.

141. 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

142. Shoring Types
Shoring 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 Shoring
The 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.

143. Pneumatic Shoring
works 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.

144. Timber Shoring

145. Pneumatic, Hydraulic, and Screw
Jacks

147. Aluminum Hydraulic Shoring Illustration of Timber Shoring

148. 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.

149. Table V:2-1. Allowable Slopes
Soil type Height/Depth ratio Slope angle
Stable 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.

150. 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

151. 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

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

153. 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

154. Anatomy of a Storm Drain Reinforced Concrete Pipe
(RCP)
Flowline (FL) and
Gradeline (GL)
Spring Line
Outside Diameter
(O.D.)
Inside Diameter
(I.D.)
Haunch
Top
Crown

155. 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.

156. American Concrete Pipe Association – Std. Trench/Embankment Installation

157. Class 0.01 inch Crack D-
load (lbs/ft/ft)
Ultimate
D-load
(lbs/ft/ft)
I
II
III
IV
V
800
1000
1350
2000
3000
1200
1500
2000
3000
3750
Reinforced Concrete Pipe

162. 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 2
Ground 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

163. STORM DRAINS
GARDEN GROVE STORM DRAIN

184. • 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

185. • 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

186. State-
Designa
ted 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.

187. 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.

189. Old MS4 Permit New MS4 Permit

190. 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

192. 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.

193. • 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.

194. 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 receiving
water bodies.
(b) Each Copermittee must include water quality protection measures, where
feasible, when retrofitting existing flood control structural devices.

195. 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 …

196. • 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.

197. • 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.

198. 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.

200. Old MS4 Permit New MS4 Permit
MS4 Permit Model WQMP submittal to R8 – March 22, 2011
Model WQMP R8 Board Hearing – April 22, 2011

202. 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.

203. 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?

204. • 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.

205. 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

206. 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

207. All permit documentation must now be submitted electronically through what the
State has named the SMART system
Stormwater Multi Application and Report Tracking System

208. New permit combats two main pollutant factors:
pH, and
Turbidity
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

209. 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 discharged
2. Receiving Water Risk – the risk sediment discharges may pose to the
receiving waters
3. Overall Risk

210. 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 Risk
15 < A < 75 Medium Sediment Risk
A > 75 High Sediment Risk

211. 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 MIGRATORY
2. Test for CWA 303(d) listed water bodies
3. 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.

212. • 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.

214. 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.

215. 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.

216. • 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.

217. 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.
Engineer’s Estimates
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?

218. Engineer’s Estimates
That’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.

219. Engineer’s Estimates
Engineer’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.

220. Engineer’s Estimates
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

221. 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

222. • Small versus large bid item quantities – smaller quantities usually higher unit
prices
Engineer’s Estimates
• 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

223. 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

224. 15 Recommendations for Conducting More Accurate Engineering Estimates
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

225. 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.

226. • 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.

227. §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.

228. §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.

229. 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 estimates
shall 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.

230. 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.

231. So I became an engineering estimator!!!