Navigating Sticky Permit Language in LUP Type 1 Requirements. Lessons Learned.
Orange County Sanitation District (OCSD) spent a great deal of time designing their first LUP Type 1 project under the guidelines of the Construction General Permit. In design, it all seemed straight forward. However, once a contractor was selected we quickly realized what had been designed might not fit neatly into the regulations set forth by the State. The contractor logistically and financially could not meet the requirement of returning the site to pre-construction conditions or equivalent at the end of each work day. This is one of the primary requirements of LUP Type 1. The Risk Level Calculations themselves squarely put this project at Type 1, however, logistically the project wanted to work under the regulations of Type 2. To keep the project on budget and on time, the contractor wanted to work with open trench and stockpiles on site. This sparked a permit language interpretation discussion between the State Board, the Regional Board, OCSD and the Contractor hired to complete the project. Although the State provides an option not to close up at the end of the day, both in SMARTS and in the flow diagram of Attachment A.1 LUP Project Area or Project Section Area Type Determination, there is no written language in the permit itself to support not returning to pre-construction conditions at the end of the day. Regional Boards have the authority to interpret the language as they see fit and though many users of the permit interpret “or” statements between the written requirements of Type 1 in Attachment A such that in their minds it reads as A or B or C, when in fact, it does not. It actually reads A or B with no transition to C. Without an “or” statement between B and C, it leaves it up to the reader to interpret the intention of the permit. It is unclear. It can just as easily be interpreted to read as A or B and C which would require that all LUP Type 1 projects shall be returned to pre-construction or equivalent conditions at the end of each work day. We believe that anyone currently operating under LUP Type 1 regulations may be unaware of these important interpretation issues surrounding this designation and we wish to share our experience and what we have learned through our discussions with our Regional Board and with the State Board.
We also had to struggle with differing interpretations of this language between OCSD and the contractor we hired. We will discuss the lessons we learned on the financial implications of trying to enforce Stormwater requirements on a contractor who would rather take the risk of being fined than meet the obligations. As the owner who is legally responsible for the site conditions, this became an important lesson on how to write future contracts and deal with the financial limitations that come with enforcement. Many times we were asked to choose between compliance or the completion of the project. We will review the tool sets we used to engage the contractor and propose some ideas to help protect owners who may encounter situations like this themselves.
We will also perform an interactive exercise demonstrating the importance of “or” and “and” statements and the legal ramifications and implications that result from such language in permits that create sticky interpretations. We will perform a survey with participants to gain the audience’s understanding and practices with Type 1 permits and solicit for their input and comments on how to make this language more clear before the 2015 General Construction Permit is released. We will also initiate an inquiry conversation with participants on how they have managed compliance requirements under such Type 1 conditions. Having open dialogue between speakers and participants allows for the important sharing of knowledge back and forth and creates a two way knowledge transfer and interactive experience for everyone.