4-Attachment B- BD27-1 Feasibility Study Scope of Work(rev).pdf

Attachment B: Scope of Work Section 404 Assumption Feasibility Study

Introduction

The Utah Department of Environmental Quality (DEQ), Division of Water Quality (DWQ), requests proposals to conduct a feasibility study for the State of Utah (the State) to assume administrative authority over Clean Water Act (CWA) Section 404 permitting (Section 404 Assumption). The Final Feasibility Report is requested within 6-9 months of the contract award date. Submissions are limited to 20-pages excluding resumes.

Background

Section 404 of the CWA is a federally administered program that regulates discharges of dredged and fill material into

Waters of the United States (WOTUS). These discharges are considered point source discharges, but are excluded from

National Pollutant Discharge Elimination System (NPDES) requirements. The State of Utah has had delegated authority over NPDES since July 1987, and implements the requirements through its Utah Pollutant Discharge Elimination System

(UPDES) program. Utah DWQ applies its UPDES program to surface waters of the state (WOTS), which is at least as stringent as federal requirements, since all WOTUS are considered WOTS. Utah DWQ implements the Section 401 Water

Quality Certification Program, which provides states and authorized tribes the authority to grant, deny, or waive certification of federal licenses or permits that may discharge to WOTUS, including U.S. Army Corps of Engineers (USACE)

Section 404 permits.

Some states have state permitting programs that bridge the gap in protection for state waters that are not protected by

Section 404 Permits while preventing duplication of protections. In Utah, the Department of Natural Resources (DNR), Division of Water Rights (DWRi) administers the Stream Alteration Permitting Program, which provides protection for some of the linear water features that are considered WOTS, but not WOTUS. The USACE has issued a Programmatic General

Permit (PGP) to the program, eliminating regulatory duplication. Utah does not have an equivalent program to protect wetlands that are considered WOTS, but not WOTUS. The state has relied on the Section 404 Program and the 401 Water

Quality Certification Program for wetland protections.

Repeated changes to the definition of WOTUS has caused regulatory uncertainty for prospective permittees, caused permitting delays, and decreased protections for wetlands and other waterbodies considered WOTS, but not WOTUS in

Utah. Utah faces unique challenges due to naturally arid conditions which have been exacerbated by recent droughts, and the definition of WOTUS has become insufficient to protect Utah’s waters, especially wetlands. The Department of Natural

Resources (DNR), Utah Geological Survey (UGS) is currently conducting a wetlands study, which will evaluate changes to protections to wetlands based on changes to WOTUS.

In support of regulatory certainty, permitting efficiency, and ensuring protections for the waters within Utah’s border, DWQ is seeking to evaluate the feasibility of assuming the Section 404 Program. Since the UPDES program is applied to WOTS and there is a gap in protections for wetlands that are considered WOTS, but not WOTUS, the DWQ is requesting evaluation of applying the Section 404 Program strictly to WOTUSandwhether it should be applied to WOTS. Recognizing that the definition of WOTS is broad, the DWQ anticipates that there would be reasonable exemptions to what would be considered a jurisdictional WOTS in regard to implementation of Section 404.

Scope of Work

The goal of the Section 404 feasibility study is to understand the costs, benefits, challenges, potential structure, and legal requirements associated with Assuming Section 404. The feasibility report will include a roadmap to assumption with clear, feasible milestones; and a fact sheet and presentation will be developed for DWQ to conduct outreach. Below are the specific Tasks (sections) for the Section 404 feasibility study and ancillary requirements and deliverables. Unless otherwise specified all tasks, analyses, deliverables, and recommendations within the scope of work must evaluate

Section 404 implementation to WOTUS and WOTS. This requires clear demarcation between information associated with

Section 404 implementation to WOTUS vs. WOTS. In addition to the tasks identified below DWQ requires at a minimum a

90-minute project kick-off meeting. The tasks outlined in this scope of work will become sections of a Final Section 404 feasibility study. Some ancillary deliverables are also required and are specifically called out in the task sections.

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Task 1: Background and Introduction

Description

Establish the context and lay the groundwork of the feasibility study. Include an evaluation of the USACE Section 404

Permitting program and Section 404 Assumption requirements. This section shall include the following:

A. Overview of USACE Section 404 Permitting

Provide an overview of the USACE Section 404 Permitting program including, at a minimum:

● Types USACE permits;

● 401 Water Quality Certifications;

● Mitigation requirements;

● Endangered Species Act requirements;

● National Historic Preservation Act requirements; and

● National Environmental Policy Act (NEPA) requirements.

B. Overview Section 404 Assumption

Provide an overview of Section 404 Assumption including, at a minimum:

● Detailed description Section 404 Assumption;

● Process to Assume Section 404; and

● Requirements for Section 404 Assumption, including application requirements.

C. Distinction of WOTUS and WOTS

Provide the regulatory and legal distinctions between WOTUS and WOTS. This section shall recommend reasonable exemptions to what would be considered a jurisdictional WOTS in regard to implementation of Section

404.

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Deliverables

● Draft Feasibility Section:A draft feasibility sectiondetailing the information required in Task 1A through 1C provided to DWQ by the agreed upon deadline. Provide the draft via email as either Microsoft Word document or

GoogleDoc.

● Discussion and Feedback Meeting:A 1-hr discussionand feedback meeting 2 weeks after the draft is provided to

DWQ to discuss the draft, provide feedback, and ask questions.

● Finalized Feasibility Section:A finalized feasibilitysection encompassing DWQ feedback (as applicable) within 2 weeks of the Discussion and Feedback Meeting or by an alternative mutually agreed upon date. Provide this section to DWQ via email as a PDF or GoogleDoc and include it in the Final Feasibility Report.

Task 2: Mapping of Assumable Waters

Description

The delineation of assumable waters is vital in understanding feasibility of Section 404 Assumption and potential benefits and challenges. This task includes the following:

A. Delineation of WOTUS assumable waters and waters retained by the USACE.

Spatially delineate assumable waters and USACE retained waters. Retained waters include Rivers and Harbors Act

Navigable Waters and potentially Traditional Navigable Waters. The assumable waters shall also contemplate potential federal retention of waters due to Tribal authority. Include the following:

● Map(s) of assumed and retained waters prepared for the feasibility study;

● A detailed list of major water bodies assumed and retained;

● Estimated miles of assumed linear waters;

● Estimated acres of assumed wetlands; and

● Explanation of why certain waters are retained.

B. Development of shapefiles and KMZ File(s)

Develop geographic information system (GIS) shapefiles of WOTUS assumable waters and USACE retained waters and corresponding KMZs. These files become property of DWQ upon delivery.

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● GIS shapefile(s):Map layer(s) of assumable waters and USACE retained waters as required by Task 2B, by the agreed upon deadline.

● Draft Feasibility Section:A draft feasibility sectiondetailing the information required in Task 2A provided to DWQ by the agreed upon deadline. Provide the draft via email as either Microsoft Word document or GoogleDoc.

● Discussion and Feedback Meeting:A 30-Minute meeting1-2 weeks after the draft feasibility section is provided to

DWQ to discuss the draft, provide feedback, and ask questions.

● Finalized Feasibility Section:A finalized feasibilitysection encompassing DWQ feedback (as applicable) within 2 weeks of the Discussion and Feedback Meeting or by an alternative mutually agreed upon date. Provide this section to DWQ via email as a PDF or GoogleDoc and include it in the Final Feasibility Report.

Task 3: Legal Framework and Gap Analysis

Description

This task is meant to assess the gap in statutory authority and rules necessary to Assume Section 404.

A. Legal Inventory/Crosswalk

Identify rules and regulations necessary to assume Section 404. Develop a legal inventory and crosswalk of the state statutes and regulations compared to regulations necessary to administer Section 404 Assumption. This analysis must include regulations associated with DNR, DWRi Stream Alteration Permitting to assess any regulatory gaps in relation to implementing Section 404 Assumption for linear water features. Present this information in a table similar to the one below, including at a minimum the Columns in the table below:

Federal Requirement Existing State Provision Identified Gap Required Action

Include a written summary of the major gaps identified.

B. Statutory Authority

Based on the required actions identified in Task 3A and legal authorities necessary to Assume Section 404, identify statutory changes necessary to complete the required actions and pursue Section 404 Assumption.

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● Draft Feasibility Section:A draft feasibility sectiondetailing the information required in Task 3A and 3B provided to

DWQ by the agreed upon deadline. Provide the draft via email as either Microsoft Word document or GoogleDoc.

● Discussion and Feedback Meeting: A 90-minute meeting3 weeks after the draft feasibility section is provided to

DWQ to discuss the draft, provide feedback, and ask questions.

● Finalized Feasibility Section:A finalized feasibilitysection encompassing DWQ feedback (as applicable) within 2 weeks of the Discussion and Feedback Meeting or by an alternative mutually agreed upon date. Provide this section to DWQ via email as a PDF or GoogleDoc and include it in the Final Feasibility Report.

Task 4: Assessment of Agency Roles and Structure Recommendation

Description

Multiple federal and state agencies could play a role in Section 404 Assumption. To understand how DWQ would implement the program, we need to understand more about the roles other agencies may have in the process. Identify the potential roles of federal and state agencies in Section 404 Assumption.

A. Assessment of Agency Roles

Evaluate how Section 404 Assumption would impact other agencies and what roles they may play in the process.

Below is a table identifying agencies and the potential nexus or role they may have with Section 404 Assumption.

Agency Potential Nexus

Environmental Protection Agency Oversight and Approval of Section 404 Assumption; Tribal

U.S. Army Corps of Engineers Currently implements Section 404 Permitting in Utah

DNR-DWRi Issues Stream Alteration Permits and PGP 10

DNR- Wildlife Resources Potential Support on Endangered Species Act

DNR-UGS Potential support on Jurisdictional Determinations and Compensatory Mitigation

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Utah Department of Cultural & Community

Engagement- State Historic Preservation

Office

Potential Support on National Historic Preservation Act

Review the table and engage with agencies to understand and clearly define what role the Agency may have in

Section 404 Assumption. Prepare a table identifying the Agency, whether or not they have a role, and clearly identify the extent of the role the agency plays, as applicable.

B. State 404 Assumption Program Structure

Provide recommendations of how the Section 404 Assumption program could be structured in the State of Utah, leveraging existing resources, agency skill sets, agency missions, and prevention of duplication of efforts. Provide a flow chart of the Section 404 process if it were to be implemented in the State of Utah based on the recommendations. The flow chart shall include at a minimum, lead agencies, coordination, and program oversight.

Deliverables

● Draft Feasibility Section:A draft feasibility sectiondetailing the information required in Task 4A and 4B provided to

DWQ by the agreed upon deadline. Provide the draft via email as either Microsoft Word document or GoogleDoc.

● Discussion and Feedback Meeting: A 90-minute meeting2 weeks after the draft feasibility section is provided to

DWQ to discuss the draft, provide feedback, and ask questions.

● Finalized Feasibility Section:A finalized feasibilitysection encompassing DWQ feedback (as applicable) within 2 weeks of the Discussion and Feedback Meeting or by an alternative mutually agreed upon date. Provide this section to DWQ via email as a PDF or GoogleDoc and include it in the Final Feasibility Report.

Task 5: Identify Resource Needs and Funding

Description

The Assumption of Section 404 does not come with associated federal funds and would bring a significant additional workload to DWQ. Provide an assessment of the resources required to Assume Section 404. Include the following:

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A. Workload Analysis Complete an annual workload analysis of all work associated with USACE Sacramento District Section 404

Permitting in the state of Utah, including:

● Permitting (Individual Permits, Letters of Permission, Nationwide Permits, Programmatic General Permits

(PGPs), Regional General Permits);

● Jurisdictional Determinations;

● National Environmental Policy Act (NEPA) Environmental Reviews and Environmental Impact Statements;

● Compliance and Enforcement;

● Reviewing DNR-DWRi PGP 10s;

● Legal Costs; and

● Other work associated with Section 404 Permitting, as applicable.

Provide a detailed list of all steps of the process evaluated and present the workload in this feasibility section in both numbers of occurrences (e.g. Number of Individual Permits Issued) over a 1 year and 5 year period; and an estimate of hours spent on each task in 1 year and over a 5 year period. The USACE workload would only include work associated with WOTUS, a separate estimate will be needed for WOTS. Based on the information provided by the USACE, estimate the workload associated with Section 404 Implementation to surface WOTS over a 1 year and

5 year period; and an estimate of hours spent on each task in 1 year and over a 5 year period.

In addition, estimate the workload associated with:

● Development of rules and regulations necessary to pursue Section 404 Assumption based on the Gap

Analysis completed in Task 3.

● Outreach and stakeholder engagement associated with program and rule development; and

● Staff Training

Present the workload associated with rule development as an estimate of total hours to complete.

B. Staffing Analysis and Other Operation Costs

Based on the information gained from the assessment of agency roles completed in Task 4 and workload analysis completed in Task 5A, identify the following:

● DWQ staff resources necessary to effectively Assume Section 404;

● Staffing resources needed at each separate State agency for Section 404 Assumption;

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● Any additional annual operational costs associated with administering Section 404 Assumption, including items such databases, mapping, software, training; or other similar operational costs. Provide a total annual operating cost for implementation of Section 404 Assumption; and

● Develop a proposed organizational chart for DWQ for new FTEs needed to implement Section 404

Assumption.

The staffing resources shall be presented as both a number of necessary full-time employees (FTE) and the estimated cost associated with the staffing resources, including overhead. Included with the FTE count shall be an explanation of the role and associated work the FTEs would perform.

C. Potential Funding Structures

Based on the annual operational costs associated with administering Section 404 Assumption, provide recommendations for reasonable fees. Fee proposals should be developed to offset the program administration costs and balance public fairness. Fees can be broken down into reasonable categories such as permit types, or a technical review action.

Deliverables

● Draft Feasibility Section:A draft feasibility sectiondetailing the information required in Task 5A through 5C provided to DWQ by the agreed upon deadline. Provide the draft via email as either Microsoft Word or GoogleDoc.

● Discussion and Feedback Meeting: A 90-minute meeting2 weeks after the draft feasibility section is provided to

DWQ to discuss the draft, provide feedback, and ask questions.

● Finalized Feasibility Section:A finalized feasibilitysection encompassing DWQ feedback (as applicable) within 2 weeks of the Discussion and Feedback meeting or by an alternative mutually agreed upon date. Provide this section to DWQ via email as a PDF or GoogleDoc and include it in the Final Feasibility Report

Task 6: Complete an Analysis of the Benefits and Challenges

Description

Core to a feasibility analysis is the assessment of the benefits and challenges associated with Section 404 Assumption.

Using the information learned from prior tasks, other states, and publicly available information, develop a comprehensive list of the benefits and challenges associated with Section 404 Assumption. Include a rationale for why each item is either a benefit or challenge. Pair identified challenges with proposed mitigation strategies, where possible.

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● Draft Feasibility Section:A draft feasibility sectiondetailing the information required in Task 6 provided to DWQ by the agreed upon deadline. Provide the draft via email as either Microsoft Word or GoogleDoc.

● Discussion and Feedback Meeting: A 45-minute meeting2 weeks after the draft feasibility section is provided to

DWQ to discuss the draft, provide feedback, and ask questions.

● Finalized Feasibility Section:A finalized feasibilitysection encompassing DWQ feedback (as applicable) within 2 weeks of the Discussion and Feedback meeting or by an alternative mutually agreed upon date. Provide this section to DWQ via email as a PDF or GoogleDoc and include it in the Final Feasibility Report

Task 7: Strategic Implementation Roadmap

Description

Based on the information gathered and prepared in Tasks 1-6, provide a step-by-step schedule presented in a Gantt Chart or similar, on how the state could reasonably progress to Section 404 Assumption. Include details on why the proposed timeline is feasible. The roadmap should include specific phases such as pre-assumption planning, staffing, rule development, application development, program scaling (as applicable), and other necessary steps to assume Section

404 and identify clear milestones. The Implementation Roadmap may contemplate a phased approach that includes the development of a state permitting program, primarily focused on wetland protections. The state program could be scaled to a PGP through the USACE that is similar to DNR-DWRi Stream Alteration Permit.

Deliverables

● Draft Feasibility Section:A draft feasibility sectiondetailing the information required in Task 7 provided to DWQ by the agreed upon deadline. Provide the draft via email as either Microsoft Word or GoogleDoc.

● Discussion and Feedback Meeting: A 90-minute meeting2 weeks after the draft feasibility section is provided to

DWQ to discuss the draft, provide feedback, and ask questions.

● Finalized Feasibility Section:A finalized feasibilitysection encompassing DWQ feedback (as applicable) within 2 weeks of the Discussion and Feedback meeting or by an alternative mutually agreed upon date. Provide this section to DWQ via email as a PDF or GoogleDoc and include it in the Final Feasibility Report.

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Task 8: Final Feasibility Report

Description

Compile a comprehensive report of the finalized feasibility sections from Tasks 1-7. Include a table of contents, executive summary, and recommendations. The Final Feasibility Report shall be presented in a logical and cohesive manner.

Develop a presentation and fact sheet highlighting key pieces of each section of the Final Feasibility Report. All information, reports, maps, tables, data, presentations, facts sheets, and supporting documents shall be submitted and become the property of DWQ upon delivery.

Deliverables

● Draft Final Feasibility Report:A draft final feasibilityreport detailing the information required in Task 8 provided to

DWQ by the agreed upon deadline. Provide the draft via email as either Microsoft Word or GoogleDoc.

● Discussion and Feedback Meeting: A 90-minute meeting2 weeks after the draft feasibility section is provided to

DWQ to discuss the draft, provide feedback, and ask questions.

● Final Feasibility Study:A final study section encompassingDWQ feedback (as applicable) within 2 weeks of the

Discussion and Feedback meeting or no later than the final agreed upon deadline. The Final Feasibility Report will be provided to DWQ electronically as a PDF or GoogleDoc.

● Presentation and Fact Sheet:The presentation andfact sheet required by Task 7, must be provided concurrently with the Final Feasibility Report, but no later than the final agreed upon deadline. Provide the Presentation and

Fact Sheet electronically to DWQ. The Presentation may be Microsoft PowerPoint or GoogleSlides.

Project Timeline

Below is the proposed project timeline. An alternative timeline may be proposed, but at a minimum it must include interim milestones and shall not extend past the June 15th, 2027 final deadline. The DWQ seeks to have critical pieces of the feasibility report completed by February 1, 2027 to coincide with the 2027 general legislative session. A detailed timeline, including milestones shall be provided in the proposal. Each draft section of the feasibility study will be provided to DWQ by the established deadline, and a feedback meeting will be scheduled per the timelines specified for each individual task. Final feasibility sections are due within 2 weeks of DWQ feedback meetings and will become a part of the

Final Feasibility Study, due no later than 9 months from contract award.

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Task Due Date

Task 1: Background and Introduction Two months from contract award date

Task 2: Mapping of Assumable Waters Two months from contract award date

Task 3: Legal Framework and Gap Analysis Four months from contract award date (preferred by February 1, 2027)

Task 4: Assessment of Agency Roles and Structure Recommendation

Five months from contract award date (preferred by February 1, 2027)

Task 5: Identify Resource Needs and Funding Six months from contract award date (preferred by February 1, 2027)

Task 6: Complete an Analysis of the Benefits and Challenges

Seven months from contract award date

Task 7: Strategic Implementation Roadmap Eight months from contract award date

Task 8: Final Feasibility Report Nine months from contract award date, but no later than June 15, 2027

Project Budget

The proposed project shall not exceed $250,000.

Proposal Requirements

Responses must meet the mandatory minimum requirements, proposal requirements, and the response format identified in this section.

Mandatory Minimum Requirements

Vendors must meet the mandatory minimum requirements for their proposals to be evaluated. Vendors must:

● Be able to do business in Utah;

● Be able to perform the requirements of this scope of work;

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● Be able and able to meet the deliverable deadlines; and

● Have experience in program feasibility studies;

● Meet a 20-page proposal limits;

● Follow the proposal format below; and

● Address all elements in the RFP.

Proposal Format

A. Experience and Expertise

● Provide examples of successful projects relevant to the specific deliverables in this scope of work. Include contact information for at least three references.

● Demonstrate how proposed team members have direct experience with and are qualified to conduct the specific objectives and deliverables for which they are proposed in plan development. Team member qualifications and resumes must be included as an appendix. Resumes will not be counted against the

20-page proposal limit.

● Specify all project roles for the proposed team members including but not limited to project management, analytical tasks, GIS, technical editing, and any other proposed roles.

● Proposals should discuss in detail the team members proposed for each task, their experience and expertise, and the allocation of effort among team members.

● Responses must detail the proposed allocation of hours for each task and team member(s) assigned to each task (see example table format below).

Task Deliverable Team Members 1

(hours) Team Member 2

(hours) Team Member 3

(Hours)

Task 1 Deliverable 1

Deliverable 2

B. Proposed Approach

● Provide the proposed approach/methodology that will be used to meet the objectives of each task and its accompanying deliverables in a narrative or table format.

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C. Project Timeline, Milestones, and Deliverables Develop a schedule of project milestones and deliverables in table format using the due dates in the Project Timeline Section.

D. Cost Proposal

Prepare a standalone cost proposal sheet. Include personnel titles, duties, and hourly rates in the cost breakdown portion of the spreadsheet, and proposed costs for completing specific tasks and their deliverables, indirect costs, overhead, other costs not otherwise specified, and a total evaluated cost. Vendors can offer additional items under any of the tasks for consideration.

Evaluation Criteria

Proposal Scoring Criteria Points

Total

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