Change in Effect

May 29, 2018

About the author: News compiled by Stephanie Harris, associate editor for Storm Water Solutions. Harris can be reached at 847/391-1055 or by e-mail at [email protected].


In mid-December, the Federal Highway Administration (FHWA) revised its national construction and maintenance regulation pertaining to the use of alternative types of pipe on federal-aid highway projects. The change requires the FHWA to ensure that state departments of transportation (DOT) provide for competition in the specification of alternative types of storm water culvert pipes in an effort to promote greater efficiencies and cost savings in the use of transportation tax dollars.

The regulatory change was made out of the need to find additional ways to stretch limited taxpayer dollars that are devoted to highway and bridge improvements. Recent spikes in materials such as steel and cement have decreased the purchasing power of federal highway investments, requiring strong competition among alternative construction products, including those in drainage.

The change, which went into effect on Dec. 15, 2006, was made to the FHWA’s regulations in 23 CFR part 635 subpart D in response to Section 5514 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), signed in August 2005.

“The old regulation only served to limit choices and did not reflect the realities of today’s competitive marketplace,” said Advanced Drainage System, Inc. (ADS) President and CEO Joe Chlapaty. “By promoting greater competition, the new rule should lead to significant savings for taxpayers on increasingly expensive public infrastructure projects.”

It was seen as an anomaly of the modern highway regulatory landscape for there to remain a 32-year-old, outdated provision, exclusive to pipe, that set out arbitrary limits on the acceptable choices of pipe to be used on various aspects of highway projects. By eliminating this provision, the FHWA said that pipe competition requirements will now become equal to the much broader competition requirements applying to all highway construction materials.

The FHWA noted, however, that the old regulation was codified in 1974 at a time when the culvert materials market consisted of only two materials: reinforced concrete pipe and corrugated steel pipe. At that time, state DOTs were constrained because national materials specifications were limited to these two materials and it was difficult for new pipe manufacturers to enter the public transportation marketplace.

Today, the marketplace is much different and national materials specifications are now available for many additional products and materials such as HDPE, PVC and corrugated aluminum.

Producers of corrugated high-density polyethylene (HDPE) pipe, such as ADS, support the FHWA’s decision to make the change. “We believe the new regulation will make an important difference,” Chlapaty said. “It clearly has the potential, if implemented properly, to bring in a new burst of dynamic energy into the highway drainage market, especially in those states that have been more resistant to such competition in the past.”

Supreme Court to rule on protections for wildlife in permitting programs

A recent decision by the U.S. Court of Appeals for the Ninth Circuit threatens to expand the reach of the Endangered Species Act (ESA) and create added delays for transportation projects, according to the American Road & Transportation Builders Association (ARTBA).

“If the Ninth Circuit’s reasoning is allowed to stand, the ESA will be greatly broadened,” said an amicus brief filed by ARTBA and the Nationwide Public Projects Coalition to the Supreme Court, which decided to hear the case on appeal.

ARTBA goes further to say that the circuit court’s ruling will require transportation construction managers to consider the effects of future developments.

“What the Ninth Circuit is trying to do here is to turn the Endangered Species Act into a super land-use statute that would trump all other planning requirements and permitting schemes,” Nick Goldstein, staff attorney for ARTBA, told Roads & Bridges. “This would lead to incredible delays in new transportation projects. It would also open the proverbial floodgates to a whole slew of Endangered Species Act litigation. It would allow antigrowth groups to very easily file an array of different Endangered Species Act complaints based on predictions of development that may or may not occur.”

Defenders of Wildlife brought the original suit to object to how the Environmental Protection Agency (EPA) carried out the transfer of permitting authority to Arizona for National Pollutant Discharge Elimination System (NPDES) permitting in the state. Defenders of Wildlife said the EPA has been addressing endangered species concerns all along in evaluating whether to transfer NPDES permitting authority under the Clean Water Act (CWA) to a state program. The EPA has transferred permitting authority to 45 states already.

According to Mike Senatore, an attorney for Defenders of Wildlife, this is not a new issue. The EPA had been addressing these endangered species issues for the last six or seven of these transfer decisions, he said. Senatore cited the state of Maine as an example, having made provisions during the transfer of NPDES permitting authority to protect Atlantic salmon.

“If you read Section 7 [of the ESA], I’m hard-pressed to find any statutory provisions any clearer,” Senatore said. “It says federal agencies shall consult and ensure against jeopardy to endangered species with respect to any action authorized, funded or carried out.” The Ninth Circuit agreed.

The lawsuit names the EPA, the National Association of Home Builders and others as parties.

The Home Builders have already filed a brief with the Supreme Court. In it they make the argument that the government action in question—transferring NPDES permitting authority from the EPA to the state of Arizona—does not require consideration of endangered species.

“The plain language of CWA Section 402(b) requires EPA to approve state NPDES programs if nine specific criteria are met,” said the NAHB’s brief. “None of those criteria mentions protection of listed species or the ESA.”

“It’s not whether or not the Endangered Species Act should apply to a particular piece of land or a particular project,” Calli Schmidt, spokesperson for NAHB, said. “It’s how you go about deciding that you’ve got to go for an Endangered Species Act consultation. It should not necessarily be triggered by a Clean Water Act permit. It should be triggered by the fact that there are endangered species or the possibility of endangered species.”

According to Senatore, the Defenders of Wildlife had two statues, and the EPA had to comply with both.

The Ninth Circuit ruled that the EPA did not comply with ESA requirements.

The International Erosion Control Association (IECA) has launched a new career center aimed to improve connections between the erosion, sediment control and storm water management industries and the specialized workforce required to fill job openings in this field.

By teaming with JobTarget, an industry leader in job board development and management, IECA has expanded from basic classified listings to a full-service career center offering advanced services for both job seekers and employers.

The center offers free resume postings for all job seekers. An anonymous resume feature enables them to list their experience and qualifications in a protected environment. By giving both active and passive job seekers the ability to anonymously post their resumes, the IECA career center allows job seekers to stay connected to the employment market while maintaining full control of their confidential information. Another new feature is the job alert system, which provides e-mail notification of new job opportunities based on selected search criteria.

Currently, nearly 100 positions have been posted to the new IECA career center. Position titles range from grading, erosion and sediment control inspector to auto CAD designer-stream restoration/LID to staff civil/water resources engineer. Positions in the academic field as well as internships for students also have been posted.

“There is a wide range of employers seeking candidates with the specialized skill set that IECA members possess,” said Becky Milot-Bradford, association development director for IECA. “We are fulfilling our members’ requests for a quality career center while answering the needs of the industry.”

Employers are able to connect to this qualified pool of candidates risk free by searching the bank of resumes and paying only when they find a candidate who is interested in the position they have available.

“It’s a winning situation for both employers and job candidates,” Milot-Bradford said.

To view the new IECA career center, or post a resume or a job, visit

Wisconsin city soon to have storm water runoff plan

For the first time, the city of Monroe, Wis., will soon have a plan to handle storm water runoff, the Monroe Times reported.

Monroe Director of Public Works Kelley Finkenbinder submitted a summary of the plan to the Board of Public Works on March 19. The full plan, Finkenbinder said, is in a three-ring binder and is rather extensive.

Because of the extent of the plan, the board has requested more information and will review it again at its next meeting to be held April 2, the Monroe Times reported.

According to the newspaper, state and federal regulations require municipalities to establish a master plan to reduce or eliminate pollution from storm water runoff. Six control measures must be part of the plan,

  • Public outreach and education regarding the elimination of illicit discharges, management of household hazardous wastes, the reuse of leaves and grass clippings and proper use of lawn and garden fertilizers, management of stream banks and shorelines and promotion of infiltration;
  • Public involvement and participation regarding activities conducted under the plan;
  • A program to detect and remove illicit discharges and improper disposals of wastes into the municipal storm sewer system;
  • Adoption of post-construction storm water management ordinance; and
  • A program that prevents or reduces pollution runoff that includes street sweeping, collection of leaves and grass clippings, controlling the application of lawn and garden fertilizers on municipal property and inspection procedures.

The city has hired MSA of Baraboo, Wis., a professional engineering firm, to assist city officials with writing the plan, the newspaper reported.

“We’ve had something before, but not as detailed as this,” Finkerbinder said.

Finkerbinder added that the plan has been in the works for 18 months, with city officials working on it in conjunction with the storm water utility plan, which was enacted last year.

U.P. erosion-control project under review

Plans for an anti-erosion project at Presque Isle Park in Marquette, Mich., are being reviewed by the U.S. Army Corps of Engineers, the Mining Journal reported.

The plans include placement of several natural, 5-ton stones along 300 ft of the water’s edge on the west side of the island. The rocks are designed to break down the waves of Lake Superior before they reach the sandstone shore, according to the Michigan newspaper.

The project was recommended in a study by STS Consultants, which took about four years to complete. Mike Pond, an engineer with STS, said the plans were sent out March 12 to the Corps and the Michigan Department of Environmental Quality for review as part of the permitting process.

“They’re really going to look at what the impact on the shore the project is going to have,” Pond said. “It was a pretty complete set of plans with cross-sections and a lot of detail to review.”

If permits for the plans are granted, Pond said the project would begin sometime around August and be completed within the year.

Pond also said the project would be contracted out: “This project would be bid and most likely done by one of the area’s general contractors.”

Last June, the Marquette City Commission opted to set aside $345,000 in the city’s 2006-2007 budget to cover the first phase of erosion-control work at the island, the Mining Journal reported. In some places, erosion has encroached within 10 ft of Peter White Drive.

Along with the 5-ton stones, smaller stones will be placed farther inland to act as a cement to keep the larger stones from washing away, according to the newspaper.

Erosion on the island’s west side also has occurred due to storm water runoff and people climbing on the banks down to the water. The erosion-control work will include enlarging the storm water culverts and adding fencing to keep foot traffic down to the lake confined to certain areas, according to the Mining Journal.

Commissioner Mike Coyne said erosion at the island has been a subject of concern for a long time. “The Presque Isle Advisory Committee has been watching the erosion and have voiced grave concern that it’s going to erode farther and thus destroy the road,” he said. “I think there’s reasonably strong community support for saving it as opposed to just letting it erode.”

Caltrans completes emergency pavement repairs

The California Department of Transportation (Caltrans) announced in early March it finished work ahead of schedule on 35 emergency pavement-repair projects, totaling $60 million.

Because these 35 projects were designated “emergency” projects, Caltrans was able to fast track the work. Six months were shaved off the normal timetable for these projects by accelerating the standard contracting procedure (advertising, bidding and awarding) via the emergency process.

“The average timetable for non- emergency repairs can be years,” said Caltrans Director Will Kempton. “We did this work in nine months. Caltrans is evolving from a transportation bureaucracy into a mobility company.”

Between December 2005 and April 2006, pouring rain and heavy snow resulted in $424 million in damages to California’s highways. Emergency pavement repair projects accounted for $60 million.

Storm water infiltrated 20 highways in 21 counties, causing significant cracking and potholes. Caltrans worked diligently and restored about 500 lane-miles of rough highway pavement following the 2005-2006 winter storm season.