BILL ANALYSIS                                                                                                                                                                                                    Ó







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        |Hearing Date:July 6, 2011          |Bill No:AB                         |
        |                                   |1210                               |
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                      SENATE COMMITTEE ON BUSINESS, PROFESSIONS 
                               AND ECONOMIC DEVELOPMENT
                          Senator Curren D. Price, Jr., Chair
                                           

                         Bill No:        AB 1210Author:Garrick
                        As Amended:June 20, 2011 Fiscal:   Yes

        
        SUBJECT:  Water quality: storm water discharge: civil engineering 
        activities.
        
        SUMMARY:  Clarifies that all civil engineering activities performed in 
        the preparation of storm water pollution plans shall be performed by a 
        licensed civil engineer; provides that a licensed civil engineer shall 
        not be required to meet any additional experience, training, or 
        certification requirements in order to perform activities in the 
        preparation of storm water pollution prevention plans.

        Existing law:
        
       1)Licenses and regulates professional engineers, land surveyors, 
          geologists and geophysicists by the Board for Professional 
          Engineers, Land Surveyors, and Geologists (BPELSG) within the 
          Department of Consumer Affairs.

       2)Specifies that civil engineering includes the preparation or 
          submission of designs, plans, and specifications and engineering 
          reports in connection with fixed works for irrigation, drainage, 
          waterpower, water supply, flood control, foundations, grading, etc.  
          (Business and Professions Code (BPC) § 6731)

       3)Prohibits a person from practicing civil, electrical, or mechanical 
          engineering without a license and makes it a misdemeanor (crime) to 
          practice or offer to practice civil, electrical, or mechanical 
          engineering in California without legal authorization.  (BPC § 6787)

       4)Provides that all civil engineering plans, calculations, 
          specifications, and reports shall be prepared by, or under the 





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          responsible charge of, a licensed civil engineer and shall include 
          the licensee's name and license number.  (BPC § 6735)

       5)Defines "responsible charge of work" to mean the independent control 
          and direction, by the use of initiative, skill, and independent 
          judgment, of the investigation or design of professional engineering 
          work or the direct engineering control of such projects.  (BPC § 
          6703)

       6)Prescribes waste discharge requirements for the discharge of storm 
          water by municipalities and industries in accordance with the 
          federal national pollutant discharge elimination system (NPDES) 
          permit program under the regulatory authority of the State Water 
          Resources Control Board (SWRCB) within the California Environmental 
          Protection Agency (Cal-EPA) and the nine California regional water 
          quality control boards.  (California Water Code (WC)) 


        This bill:

       1)Requires all civil engineering activities performed in the 
          preparation of storm water pollution prevention plans pursuant to 
          the General Permit for Storm Water Discharges Associated with 
          Construction and Land Disturbance Activities, as specified, to be 
          performed under the responsible charge of a licensed civil engineer.

       2)Provides that a licensed civil engineer shall not be required to meet 
          any additional experience, training, or certification requirements 
          in order to perform activities in the preparation of storm water 
          pollution prevention plans.

       3)States that nothing in the above provisions is intended to affect the 
          practice rights of any person licensed by the state to practice or 
          perform any functions or services pursuant to that license.


        FISCAL EFFECT:  The Assembly Appropriations Committee analysis dated, 
        May 18, 2011 indicates there are no significant costs associated with 
        this legislation.

        COMMENTS:
        
       1.Purpose.  This bill is sponsored by  American Council of Engineering 
          Companies  (Sponsor).  According to the Author, "This bill reiterates 
          the current B&P Code requiring that all civil engineering activities 
          must be performed by or certified by a licensed civil engineer."





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       The Sponsor is concerned that recent regulations promulgated by the 
          SWRCB related to Storm Water Pollution Prevention Plans (SWPPPs) 
          allow the practice of civil engineering by non-licensed 
          professionals.  It is the Sponsor's contention that SWPPP documents 
          contain calculations and work products that must be produced by 
          civil engineers.  SWPPP documents include water flow calculations, 
          water load calculations, drainage and flow rate calculations, soils 
          analysis and soil stability calculations, and other civil 
          engineering work.  Therefore, they should be done by or be created 
          under the responsible charge of a licensed professional engineer, 
          according to the Sponsor.

        2. Background.  The  State Water Resources Control Board  (SWRCB) was 
           created by the Legislature in 1967.  The mission of the SWRCB is to 
           ensure the highest reasonable quality for waters of the State, 
           while allocating those waters to achieve the optimum balance of 
           beneficial uses.  There are nine Regional Water Quality Control 
           Boards (Regional Boards). The mission of the Regional Boards is to 
           develop and enforce water quality objectives and implementation 
           plans that will best protect the beneficial uses of the State's 
           waters, recognizing local differences in climate, topography, 
           geology and hydrology.

        The SWRCB adopted regulations effective July 1, 2010, requiring a 
           Construction Activities Storm Water General Permit (CGP) for 
           specified construction activities.  The regulation further requires 
           that the Qualified SWPPP Developer (QSD) and the Qualified SWPPP 
           Practitioner (QSP) responsible for creating, revising, overseeing, 
           and implementing the SWPPP must attend a State Water Board 
           sponsored or approved QSP and/or QSP training course by September 
           2, 2011.

        A SWPPP establishes procedures for minimizing the potential for 
           pollutants to be carried away in storm water discharges.  These 
           procedures emphasize the use of Best Management Practices (BMPs) to 
           provide the flexibility to address varying sources of pollutants at 
           different categories.

        As of July 1, 2010, the CGP allows for a certified QSD or QSP to be 
           responsible for creating, revising, overseeing, and implementing a 
           SWPPP.  A QSD must be either a professional civil engineer; a 
           professional geologist or engineering geologist; a landscape 
           architect; a professional hydrologist registered through the 
           American Institute of Hydrology; a certified professional in 
           erosion and sediment control, or a certified professional in storm 





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           water quality, a certified professional in erosion and sediment 
           control.  QSD/QSP certification is achieved after completing a 
           two-day state-sponsored QSD and/or QSP training course and pass a 
           state examination.

       3.Arguments in Support.  In sponsoring the bill, the  American Council 
          of Engineering Companies of California  (ACEC) argues that civil 
          engineers go through years of training to identify structural and 
          non-structural controls that will be put in place to minimize 
          negative impacts caused by offsite storm water discharges to the 
          environment in a SWPPP, and that it is unnecessary for additional 
          training or certification in order to prepare a SWPPP.  

       ACEC further points out that the Construction General Permit 
          (2009-0009-DWQ) correctly states that "All engineering work must be 
          performed by a California licensed engineer," however, at the same 
          time it creates the classification of Qualified SWPPP Developer 
          (QSD) and Qualified SWPPP Practitioner (QSP), who can prepare all 
          aspects of a SWPPP after attending a 2-day QSD and/or QSP training 
          course.  One does not have to be a civil engineer to be qualified to 
          become a QSD or QSP.  ACEC argues that despite acknowledging in the 
          permit that civil engineering expertise is necessary to conduct 
          SWPPPs, the SWRCB expressly authorizes non-licensed persons to 
          practice within the scope of engineering.  

       ACEC indicates that it made comments during the rulemaking process to 
          establish the Construction General Permit (2009-0009-DWQ); however, 
          their recommendations to protect the scope of practice of civil 
          engineering, and the resulting effects on public safety, were 
          ignored by the SWRCB.  AB 1210 seeks to address this misalignment 
          between the statement of intent and application by restating that 
          civil engineering activities must be done by, or under the 
          responsible charge of, a civil engineer, according to ACEC.

       The  Board for Professional Engineers, Land Surveyors and Geologists  
          (BPELSG) writes in support that the bill clarifies the definition of 
          civil engineering, clearly stating that all civil engineering work 
          performed with respect to storm water pollution prevention plans 
          (SWPPP) must be done by a civil engineer.  "It seems like this may 
          be redundant language to Section 6731; however, there has been some 
          confusion and misinterpretation of the practice of civil engineering 
          by non-engineers with respect to SWPPP.  This bill will alleviate 
          any confusion and clearly state that civil engineering can only be 
          performed under the responsible charge of a licensed civil 
          engineer."






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       The  American Society of Civil Engineers  (ASCE) states, "It is important 
          to point out that, despite some arguments to the contrary, AB 1210 
          does not prohibit other professional practitioners from performing 
          work on a SWPPP, simply that civil engineering aspects of a SWPPP 
          must be performed under the responsible charge of a civil engineer." 
           ASCE believes that there has been erosion in the role of civil 
          engineers and of the responsibilities of the BPELSG by various State 
          regulatory agencies that have sought to impose new certification 
          requirements on civil engineers to perform their functions.  ASCE 
          opposes the recent trend in California for other State agencies to 
          create an overlapping regulatory environment over design 
          professionals that requires them to obtain multiple certificates or 
          licenses from a variety of different state agencies to practice 
          their profession.

       4.Arguments in Opposition.   Southern California Contractors Association  
          (SCCA) believes the bill is overkill, arguing that the bill 
          supplants the qualifications of a QSD except on the registered civil 
          engineer.  SCCA contends that under the bill, no longer could a 
          registered professional hydrologist be qualified as a QSD.  SCCA 
          further argues that the bill will cause confusion within the 
          industry regarding who can and cannot do QSD work.

       The  Engineering Contractors Association  ,  California Fence Contractors 
          Association  , the  California Chapter of the American Fence 
          Association  , the  Marin Builders Association  , and the  Flasher 
          Barricade Association  argue that the bill is unfair to the 
          construction industry, stating the SWRCB took years drafting the 
          permit standards and gave the construction industry two years, until 
          September 2011, to adequately train and test employees to conduct 
          both QSD and QSP work, and that changing the rules now is akin to 
          yanking the rug our from beneath the industry's feet and is unfair 
          to those who have invested resources into ensuring compliance. 

       The  Engineering & Utility Contractors Association  (EUCA) suggests that 
          the proponents should seek changes to the existing requirements by 
          petitioning the SWRCB instead of seeking proprietary changes through 
          legislation.  

        California Sections of the Association of Environmental and Engineering 
          Geologists  (AEGCS) opposes the bill, stating that although some 
          elements fall within the Engineering Act, SWPPPs are not engineering 
          documents and the bill creates confusion about who can create and 
          sign them.  AEGCS believes the bill would be misinterpreted by 
          industry, agencies, lenders and other parties involved in a 
          construction project to mean that SWPPPS must be prepared by or 





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          under the direction of civil engineers only.

       The  International Erosion Control Association  ,  EnviroCert  and  CIESC, 
          Inc  . argue that the bill reiterates existing law and regulation and 
          is not needed. 

       The  University of California  (UC) states that the bill would require UC 
          campuses to utilize licensed civil engineers to perform work on 
          SWPPPs that is currently adequately performed by other professionals 
          at a lower cost.  These professionals are usually environmental 
          engineers, geologists, or other professionals who possess 
          appropriate qualifications, even if they are not licensed as civil 
          engineers.

       UC states that SWPPPs for storm water discharges on construction 
          projects over one acre on its campuses are usually prepared by 
          contractors, while industrial storm water permits where the campus 
          performs certain activities with runoff impacts (such as vehicle 
          maintenance or landfill operation) may be done by the campus itself. 
           In both cases, UC relies on QSDs and QSPs to prepare the SWPPPs, 
          consistent with SWCRB policy.  According to UC, if AB 1210 became 
          law, the University would have to retain the services of licensed 
          civil engineers at additional cost.  "We can identify no benefit 
          that would result from this additional expenditure, particularly 
          during a period of great fiscal constraint for the University."

       5.The State Water Resources Control Board (SWRCB) has not taken a 
          position on this bill.   The SWRCB has not taken a position on the 
          bill, however SWRCB staff has indicated that they do not see any 
          point behind the bill, and that the language in the bill does 
          nothing new, and could cause confusion about the law.  SWRCB states 
          that regardless of the permit process, the Professional Engineering 
          Act still applies. 

       6.Possible Author's Amendments.  According to the Sponsor, the Author 
          wishes to offer amendments to further clarify that the bill does not 
          prohibit an unlicensed person from preparing a SWPPP, or change the 
          scope of civil engineering.  The amendments are as follows:  

             6730.4. (a) Notwithstanding any other law, all civil engineering 
             activities performed in the preparation of storm water pollution 
             prevention plans pursuant to the General Permit for Storm Water 
             Discharges Associated with Construction and Land Disturbance 
             Activities (Order No. 2009-0009-DWQ of the State Water Resources 
             Control Board), and all amendments to that order, shall be 
             performed under the responsible charge of a licensed civil 





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             engineer.
                (b)  A licensed civil engineer shall not be required to 
             satisfy any additional experience, training, or certification 
             requirements in order to perform activities in the preparation of 
             storm water pollution prevention plans as described in 
             subdivision (a).
                (c) Nothing in this section is intended to affect the practice 
             rights of any person licensed by the state to practice or perform 
             any functions or services pursuant to that license.
                (d) Nothing in this section prohibits a person who is not a 
             licensed civil engineer or who is an employee of a licensed civil 
             engineer, from preparing a storm water pollution prevention plan 
             that requires the performance of civil engineering activities if 
             the preparation is performed under the responsible charge of a 
             licensed civil engineer.
                (e) Nothing in this section expands, contracts, or modifies 
             activities that qualify as civil engineering activities under 
             this article.  


        SUPPORT AND OPPOSITION:
        
         Support:   

        American Council of Engineering Companies (Sponsor)
        American Society of Civil Engineers (ASCE)
        Board for Professional Engineers, Land Surveyors and Geologists
         
        Opposition:   

        California Chapter of the American Fence Association
        California Fence Contractors Association
        California Sections of the Association of Environmental and 
        Engineering Geologists
        CIESC, Inc.
        Construction Industry Coalition on Water Quality
        Engineering & Utility Contractors Association
        Engineering Contractors Association
        EnviroCert
        Flasher Barricade Association
        International Erosion Control Association
        Marin Builders Association
        Southern California Contractors Association
        University of California 







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        Consultant:  G. V. Ayers