BILL ANALYSIS Ó
SB 1170
Page 1
Date of Hearing: August 3, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
SB 1170
(Wieckowski) - As Amended August 1, 2016
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Urgency: No State Mandated Local Program: YesReimbursable:
Yes
SUMMARY: This bill prohibits local public agencies, including
charter cities, from delegating to a contractor the development
of a storm water pollution prevention plan (SWPPP), a water
pollution control program, or any other plan required by a
Regional Board to prevent or reduce water pollution or runoff on
a public works project. This bill also prohibits public
agencies from requiring a contractor on a public works contract
that requires compliance with any of these plans to assume
responsibility for the completeness and accuracy of the plan
developed by that entity. This bill exempts state agencies from
its requirements, as well as projects that use DB, best value,
and construction manager at risk procurement methods.
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This bill states that it is of statewide concern to require a
public entity, charter city, or charter county to be responsible
for the development of, and completeness and accuracy of, a plan
to prevent or reduce water pollution or runoff on a public works
project, and states that it is declaratory of existing law. It
also finds that there is no state-mandated local cost contained
in the bill.
FISCAL EFFECT:
Unknown significant local costs to cities, counties, special
districts, and school districts, potentially reimbursable by the
state General Fund. By prohibiting a local agency form
requiring a contractor on a design-bid-build project to develop
a SWPPP or assuming responsibility for completeness and accuracy
of a plan, this bill effectively forces the local agency to
prepare a SWPPP in-house or to contract with another entity to
perform those functions, prior to soliciting bids for the
construction of a project. Local agencies would likely incur
additional costs as a result. Whether any increased local costs
would be subject to reimbursement from the state is unknown, and
subject to a determination by the Commission on State Mandates.
To the extent the Commission 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.
Staff notes that while the bill includes a legislative finding
that it contains no mandate that will result in costs incurred
by a local agency or school district for a new program or higher
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level of service which require reimbursement, the Legislature
cannot limit a constitutional right to reimbursement through a
finding that an act does not impose a mandate. The Commission
on State Mandates has cited several decisions where the courts
have determined that the evidence contradicts what is in
statute. For example, the courts noted in Carmel Valley Fire
Protection District v. State of California (1987) 190 Cal.App.
3rd 521, 541, that the Legislature itself concluding that costs
are not reimbursable through findings, disclaimers, and control
language is a "transparent attempt to do indirectly that which
cannot lawfully be done directly." In addition, in Long Beach
Unified School District v. State of California (1990) 225
Cal.App. 3rd 155, 184, the courts noted, in reference to a
finding by the Legislature that an Executive Order does not
impose a state mandated local program, that unsupported
legislative disclaimers are insufficient to defeat a
constitutional right to reimbursement.
COMMENTS:
1)Purpose. According to the author, "Local agencies have begun
requiring contractors to prepare the state required storm
water plan and submit it as part of the bid. At this point,
the contractor or subcontractor cannot price the storm water
plan because it hasn't been designed yet - so the result is
the contractor or subcontractor is forced to estimate the cost
of implementing a storm water plan - and include that cost
into a bid - even before the plan has been designed. This
shift in responsibility: (1) undermines the intent of the
Permit; (2) results in an inefficient allocation of
responsibility and risk; and (3) is contrary to several
existing laws."
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2)Background. A SWPPP is a comprehensive, detailed,
site-specific, written document that identifies potential
sources of stormwater pollution on a construction site;
describes stormwater control measures and Best Management
Practices (BMPs) that will be used to reduce or eliminate
pollutants in stormwater discharges from the project site;
and, identifies the procedures the operator of the project
site will implement to comply with Permit terms and
conditions.
In order for a construction site to remain in compliance with
the Clean Water Act's NPDES permitting program, a SWPPP must
be developed and maintained throughout the entire construction
project. As the project progresses and goes through changes,
the SWPPP must be revised to reflect those changes. The SWPPP
is comprised of site maps, BMP details, inspection reports,
spill reports, corrective action logs and associated waivers.
A project's SWPPP may be furnished by the project owner or a
contractor, but in either case it must be prepared and
certified by Qualified SWPPP Developer (QSD), who must be a
registered engineer or other licensed professional. Many other
SWPPP tasks (i.e. site inspections) must be conducted directly
by, or under the supervision of, a QSD or Qualified SWPPP
Practitioner (QSP). There are extensive qualification and
training requirements for both the QSD and QSP.
The Permit is typically held in the name of the property
owner. Consequently, the party required to ensure compliance
with the Permit is the property owner, not the contractor.
The Permit also requires the discharger (i.e., owner) to file
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Permit registration documents, annual reports and other
compliance information. The discharger must certify that the
information provided regarding the project site is accurate
and complete. The discharger must allow entry to the project
site for inspections and provide records required to be kept
under the Permit.
Typically, the owner of the construction site is designated
the "discharger" from the site and is therefore the "Legally
Responsible Person" under the SWRCB permit. Consequently, the
party required to ensure compliance with permit terms is the
property owner, not the contractor. Any person who violates
permit conditions is subject to a civil penalty of up to
$37,500 per calendar day of a violation, plus sanctions
provided by federal law. It is common practice for public
agencies to delegate the responsibility for preparing a SWPPP
to a contractor because the contractor has control over the
sequencing of various aspects of a construction project, which
may have an impact on strategies for controlling stormwater
runoff.
3)State Water Board. According to staff at the State Water
Board, the practice of delegating development of an SWPPP to
the contractor is neither new nor unusual. This is frequently
the practice they see in construction projects that must
obtain a Permit and develop an SWPPP. They note that the
discharger, or the responsible party for the Permit, is named
on the Permit and is always the owner/agency, not the
contractor. Thus, responsibility for compliance with the
Permit remains with the owner/agency, regardless of which
party develops the SWPPP.
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Water Board staff also asserts that most municipalities don't
have the expertise to develop SWPPPs and don't have the
resources to retain QSDs on staff. QSDs are typically
employed by environmental consulting firms that perform the
work of developing SWPPPs under contract, either with a
contractor (which is more common), or with the owner/agency.
(Some large contracting firms keep QSDs on staff, but many
smaller firms don't have the resources to do so.)
4)Arguments in Support: The Associated General Contractors,
sponsor of this measure, write, "SB 1170 ensures that adequate
resources are allocated to the pollution prevention planning
process by clarifying that local agencies are responsible for
the preparation of Stormwater Pollution Prevention Plans
('SWPPP') required on public works projects. SB 1170
prohibits local agency owners from delegating responsibility
to contractors to assume responsibility for SWPPP design.
"Also, contrary to arguments by the local agencies, the
contractor is not in the best position to design the
stormwater plan. An owner's QSD is best suited to design a
robust SWPPP given a better understanding of the local
topography, hydrology and site. Most projects are planned and
designed over a period of 12 months or more. This process
includes a geology and hydrology study, and civil engineering
of storm drain systems to carry and control runoff. This
robust planning and design process is when the SWPPP is best
prepared. SB 1170 makes it so."
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5)Arguments in Opposition: Opponents, primarily cities,
counties, and other local agencies, state, "SWPPPs are
currently created in accordance with the general contractor's
construction plans. As construction progresses, SWPPPs must
often be modified to accommodate the constantly changing
conditions of a construction site. The general contractor is
in the best position to create the construction plan and
contract for the corresponding SWPPP. A general
contractor-developed SWPPP can incorporate an optimal
construction sequence selected by the contractor, thereby
maximizing efficiency and reducing costs. A separate entity
developing a SWPPP would have to assume a sequence of work
that might occur under one construction scenario but not
another.
"AB 1170 would turn this standing process on its head by
prohibiting public agencies from contracting with the general
contractor to develop a SWPPP and statutorily restricting
their remaining options to an engineer or architect. Public
agencies, engineers and architects simply do not have the
direct control over the day-to-day construction, let alone the
expertise, to perform this function."
6)Prior Legislation. AB 1315 (Alejo) of 2015, held on this
Committee's Suspense File, was similar to this bill, but that
bill did not exempt state agencies or contracts using
alternate procurement methods, did not specify it was
declaratory of existing law, and did not include language
finding that there was no mandate in the bill.
Analysis Prepared by:Jennifer Swenson / APPR. / (916)
SB 1170
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319-2081