BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1170|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: SB 1170
Author: Wieckowski (D), et al.
Amended: 5/31/16
Vote: 21
SENATE GOVERNANCE & FIN. COMMITTEE: 7-0, 3/30/16
AYES: Hertzberg, Nguyen, Beall, Hernandez, Lara, Moorlach,
Pavley
SENATE ENVIRONMENTAL QUALITY COMMITTEE: 7-0, 4/20/16
AYES: Wieckowski, Gaines, Bates, Hill, Jackson, Leno, Pavley
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/27/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
SUBJECT: Public contracts: water pollution prevention plans:
delegation
SOURCE: Associated General Contractors
DIGEST: This bill prohibits local agencies from requiring a
contractor to prepare or assume responsibility for certain plans
that prevent stormwater runoff from construction sites.
ANALYSIS:
Existing law:
1)Provides, under the federal Clean Water Act and the state
Porter-Cologne Water Quality Control Act:
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a) Charges the State Water Resources Control Board (SWRCB)
with the regulation and protection of water quality.
b) Prohibits the discharge of pollutants to surface waters
unless the discharger obtains a permit from SWRCB.
c) Establishes the National Pollutant Discharge Elimination
System (NPDES) permit program requiring the SWRCB and the
nine California regional water quality control boards to
prescribe waste discharge requirements which, among other
things, regulate the discharge of pollutants in stormwater
associated with construction activity to waters of the
United States from construction sites that disturb one or
more acres of land surface, or that are part of a common
plan of development or sale that disturb more than one acre
of land surface.
d) Requires, by regulation, the development and execution
of Storm Water Pollution Prevention Plans (SWPPPs) to
manage discharges of pollutants from construction sites.
2)Prohibits a local public entity, charter city, or charter
county from requiring a bidder on a public works contract to
assume responsibility for the completeness and accuracy of
architectural or engineering plans and specifications on
public works projects, except as specified.
3)Requires local officials to invite bids for construction
projects and then award contracts to the lowest responsible
bidder.
4)Authorizes local governments to use alternative procurement
methods, such as design-build or construction manager at risk,
on certain projects in lieu of soliciting bids and awarding
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them to the lowest bidder.
5)Requires engineering and architectural plans to be developed
by licensed engineers or architects.
This bill:
1)Prohibits a public entity, charter city, or charter county
from delegating the development of certain plans associated
with public works projects and from requiring a contractor on
a public works contract to assume responsibility for the
completeness and accuracy of those plans.
2)Defines "plan" to include a SWPPP, water pollution control
program, or any other plan required by the regional boards to
prevent or reduce water pollution or runoff on a public works
project.
3)Authorizes public entities, charter cities, and charter
counties to contract separately with a licensed architect or
engineer for design of a plan, and they may require a bidder
to review an applicable plan and report errors or omissions.
4)Limits those reviews to the contractor's capacity as a
contractor.
5)Exempts certain design-build, best-value, and construction
manager at risk projects from its provisions.
6)Exempts state departments and agencies from its provisions.
Background
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State law requires public and private owners of construction
projects that disturb one or more acres of land to develop a
SWPPP which identifies potential sources of stormwater pollution
on a site, describes control measures to manage stormwater
pollution, and identifies the procedures the operator of the
project site will implement to prevent discharges.
A project's SWPPP may be developed by the project owner or
prepared by a contractor's SWPPP developer. Typically, the
owner of the construction site is designated the "discharger"
from the site and is therefore the "Legally Responsible Person"
for ensuring compliance with stormwater regulations.
Many public entities require contractors to include in their
bids the cost of preparing and implementing SWPPPs, and have
begun requiring contract provisions that indemnify the public
entity against penalties associated with violations of the
Permit and prohibit change orders associated with SWPPPs. In
addition, construction costs in California declined sharply for
several years beginning in 2007, creating intense competition
for projects among contractors, reducing margins. Some
contractors want to restrict the ability of public agencies to
require contractors to prepare SWPPPs as part of a public works
contract.
Comments
1)Purpose of the bill. Public agencies that design construction
projects and put them out to bid have begun to require
contractors to develop SWPPPs, often in as little as three
weeks, as a part of a bid package for the project. Since
public agencies usually must award the contract to the lowest
responsible bidder, some contractors lowball the cost and
contents of SWPPPs, resulting in ineffective SWPPPs that don't
serve their purpose to stop stormwater discharges. Public
agencies have responded by prohibiting change orders and
requiring contractors to indemnify the agency. This
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effectively shifts legal responsibility for the plan onto
contractors. Public agencies must receive other environmental
permits prior to a project going out to bid; current practice
around SWPPPs is therefore out of step with other laws. By
ensuring that development and compliance with the SWPPP rest
with the public agency, SB 1170 furthers the intent of
existing laws that prohibit holding contractors liable for the
responsibilities of public entities.
2)Practice makes perfect. Contractors work on multiple
construction projects over time, or even simultaneously.
Accordingly, many develop preexisting relationships with the
practitioners that develop SWPPPS. Some larger public
agencies may also have those relationships, but it doesn't
make sense for smaller ones that rarely build new public works
to do the same. Moreover, SWPPPs are ever-changing documents.
Construction projects frequently change in response to
unforeseen circumstances or issues with the site, and the
SWPPP must be revised to reflect those changes. Contractors
who are actually performing work on a site are in the best
position to know when the plan must be modified. Requiring
the contractor to develop and maintain the SWPPP-and ensuring
that the contractor bears the risk of violating stormwater
laws-sets up the right incentives for the people performing
the work to ensure that the SWPPP effectively protects water
quality. SB 1170 removes these incentives and increase the
burden on unprepared local agencies, potentially resulting in
illegal pollutant discharges, fines to the state and local
governments, and water quality problems.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee:
Unknown significant local costs to cities, counties, special
districts, and school districts, potentially reimbursable by
the state General Fund. To the extent the Commission on State
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Mandates finds that the bill imposes a higher level of
service, and identifies local costs that are subject to
reimbursement, this bill could result in significant General
Fund costs.
SUPPORT: (Verified5/31/16)
Associated General Contractors (source)
American Subcontractors Association
California Association of Sheet Metal and Air Conditioning
Contractors, National Association
California Chapters of the National Electrical Contractors
Association
California Legislative Conference of the Plumbing, Heating and
Piping Industry
California-Nevada Conference of Operating Engineers
California Precast Concrete Association
California Professional Association of Specialty Contractors
International Conference of Operating Engineers
Northern California Allied Trades
Southern California Contractors Association
State Council of Laborers
Union Roofing Contractors Association
United Contractors
Wall and Ceiling Alliance
OPPOSITION: (Verified6/1/16)
Association of California Healthcare Districts
Association of California School Administrators
Association of California Water Agencies
California Association of Sanitation Agencies
California Association of School Business Officials
California Municipal Utilities Association
California School Boards Association
California Special Districts Association
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California State Association of Counties
California State University
City/County Association of Governments of San Mateo County
City of Camarillo
City of Cathedral City
City of Emeryville
City of Laguna Hills
City of Rancho Mirage
City of San Bruno
Coalition for Adequate School Housing
County of San Joaquin
County of Yolo
League of California Cities
Rural County Representatives of California
Three Valleys Municipal Water District
Transportation Agency for Monterey County
Urban Counties of California
Prepared by:Anton Favorini-Csorba / GOV. & F. / (916) 651-4119
6/1/16 9:31:06
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