February 21, 2023
Public Works
DATE: February 21, 2023
TO: Mayor Martinez and Members of the City Council
FROM:
Daniel Chavarria, PE, Director of Public Works
Robert Armijo, Deputy Director of Public Works
Mary Phelps, Project Manager I
Subject: Keller Beach Sanitary Sewer Temporary (45-day) Urgency Ordinance
FINANCIAL IMPACT: The subject Urgency Ordinance would likely impact City finances temporarily because it would prohibit the City from issuing building permits requiring new connections to the Keller Beach Sanitary Sewer (“KBSS”). New-
construction building permits, for example, can include impact fees for various City services, including libraries, police, fire, etc.
PREVIOUS COUNCIL
ACTION:
January 18, 2022, and March 1, 2022
STATEMENT OF THE
ISSUE:
The City Council adopted Ordinance No. 05-22 N.S.
extending a 45-day temporary moratorium for 10 months
and 15 days on the issuance of building permits requiring a new sewer connection to the Keller Beach Sanitary
Sewer, and Declaring the Urgency thereof pursuant to
Government Code Section 65858. The moratorium
unintentionally expired on January 18, 2023. The public safety urgency remains, and City staff is requesting a
new temporary 45-day moratorium, be adopted, on the
issuance of building permits requiring a new sewer
connection to the Keller Beach Sanitary Sewer.
AGENDA
REPORT
February 21, 2023
RECOMMENDED ACTION:
ADOPT an urgency ordinance, pursuant to Government
Code Section 65858, establishing a temporary
moratorium (45 days) on the issuance of certain building permits for development requiring a new sewer
connection to the Keller Beach Sanitary Sewer and
Declaring the Urgency thereof pursuant to Government
Code Section 65858. The Ordinance is not a project
under the California Environmental Quality Act (CEQA),
in that it maintains the existing physical environment and prevents changes in the environment and so does not
have the potential for resulting in either a direct or
reasonably foreseeable indirect physical change in the
environment (CEQA Guidelines Section 15378(a)). It is
also exempt under Guidelines Sections 15060(c)(2), as
the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment, and Section 15061(b)(3), as there is no possibility that the adoption of this ordinance may have a significant
effect on the environment because it maintains the
existing condition of the environment. – Public Works
Department (Daniel Chavarria 510-620-5478).
Background:
The Keller Beach Sanitary Sewer (KBSS) consists of 5,392 linear feet of 8-to-12-inch concrete-encased cast iron pipe. The pipeline, constructed in 1959, is located off Keller Beach in the San Francisco Bay and is submerged during average tides. The location of the sewer is indicated by a red line in the image below and extends from sanitary sewer manhole MH Q-1 (adjacent to the Keller Beach sanitary sewer pump station) to sanitary sewer manhole MH Q-25.
February 21, 2023
Access to the sanitary sewer pipeline for maintenance or repair is extremely difficult because the manholes are submerged during high tides, and vehicles cannot get within 50 feet of the pipeline due to the cliffs and private property. Access for foot traffic is also limited to public beach access and through private properties. These conditions make it difficult to get appropriate equipment in the area to maintain the pipeline.
Assessment of Keller Beach Sanitary Sewer:
On November 17, 2021, the City received a commissioned study and assessment of the KBSS system. The study confirmed the City’s concerns regarding the sustainability and increased use of the KBSS sewer interceptor and other infrastructure. The following issues have been identified:
Poor Pipe Conditions: KBSS sewer has been in service for approximately 62 years and has reached the end of its useful design life. The pipe that is visible and CCTV inspected is highly corroded and the remaining wall thickness and structural strength is unknown, but clearly compromised. The sewer main has been partially descaled but remains weakened and increasingly prone to cracks and breaks. The pipe’s profile has extensive sags and will continue to sag and adjust due to its location in the surf zone under the force of shifting sand and wave action. Laterals are in poor condition with known and suspected defects which the City/Homeowners are obligated to correct.
Limited Access for Maintenance and Repair: No vehicle access to beach, limited walkability due to cliffs and private property, and restricted work periods due to the ocean tides all contribute to limited sustainability of KBSS.
Environmental Risk: Due to location of KBSS, paired with its condition, infrastructure failures would likely result in severe environmental harm and an inability to quickly remediate damage/leaks. In addition to environmental harm, the City faces extensive liability in the event of a major leak into the San Francisco Bay.
Previous Expired Moratorium
On January 18, 2022, pursuant to Government Code Section 65858 (“GC Section 65858”), the City Council adopted Urgency Ordinance No. 01-22 N.S. (hereinafter “Urgency Ord. No. 01-22”), which established a 45-day moratorium (to expire March 4, 2022) on the issuance of building permits requiring a new sewer connection to the Keller Beach Sanitary Sewer (KBSS) and declaring the urgency thereof. Also on January 18, 2022, the City Council adopted Resolution No. 08-22, which accepted the findings of the Keller Beach Sanitary Sewer CCTV review and assessment report (“KBSS Review and Assessment Report”), dated January 3, 2022. Urgency Ord. No. 01-22 was extended by Ordinance No. 05-22 extending the moratorium for 10 months and 15 days. This mortarium expired on January 18, 2023. The public safety urgency remains, and City staff is requesting a new temporary 45-day moratorium be adopted.
February 21, 2023
Work completed since Previous Moratorium
Following Cit Council approval in July 2022, the City entered into a contract with Coastland Engineering to complete the Keller Beach Sanitary Sewer Feasibility Project.
Coastland Engineering began work on the Keller Beach Sanitary Sewer Replacement Feasibility Study on October 27, 2022. This project involves public outreach, preliminary feasibility studies and investigations, and the development of alternatives for relocating the existing Keller Beach Shoreline sewer into the streets of Point Richmond. Other consultants working on the project include Kister, Savio & Rei, Inc (surveyors), Cal Engineering & Geology (geotechnical engineers), NCE (environmental scientists/ planners), and J Majors & Associates (public outreach).
Public outreach will inform the Point Richmond community about the project’s purpose and goals, status, and timeline. Initial project notification was conducted in January of 2023, consisting of the preparation of fact sheet flyers, and door-to-door communication with property owners. Public informational meetings are planned for Spring and Summer of 2023 to update the community of the project’s findings and timeline.
Preliminary studies will evaluate constraints and opportunities for new sewer construction by conducting topographic surveys, researching existing utilities and easements, conducting geotechnical investigations, and completing environmental and cultural resource investigations to identify permitting requirements. These studies will be conducted in February and March of 2023.
Preliminary civil design will develop alternatives for a new sewer main with plan and profiles. Project alternatives will be developed to meet City sewer design and construction standards and with the goal of maximizing system reliability and minimizing construction as well as operations and maintenance cost. Sewer alignments and profiles will be developed to minimize the number of lift stations needed, and to avoid or minimize conflicts with existing utilities and constraints of public right-of-way and topography. Design alternatives will consider various methods of construction including traditional open-cut methods, pipe-bursting and horizontal directional drilling. The new sewer main feasibility assessment will be conducted between April and July of 2023.
Private property sewer lateral improvements are anticipated to be needed for some residences whose laterals will not be able to drain by gravity to the new sewer system.
This project will conduct an assessment of the anticipated range of costs for these improvements.
Opportunities for funding the project’s construction will be presented in a Funding Options Technical Memorandum, which is anticipated for completion in August of 2023.
The findings of this preliminary feasibility study are likely to identify additional investigations needed prior to the final design. The timing of additional investigations construction is anticipated in 2024, with the final design being completed in fall of 2025-
26. The forecast for construction of the new Keller Beach sanitary sewer main is 2026-
27.
February 21, 2023
Adoption of Sewer Moratorium as Urgency Measure
State statutes and case law support the right of a legislative body to consider and enact a moratorium on the issuance of development entitlements and building permits when a public agency is studying or intends to study a proposed general plan or zoning change that might affect the issuance of such permits for development. Government Code § 65858 authorizes cities and counties to adopt an ordinance prohibiting uses that may be in conflict with a contemplated planning or zoning proposal. The State law also establishes procedures the City must follow prior to adoption of an interim ordinance establishing a development moratorium. Such an ordinance requires only one reading, becoming effective immediately upon adoption. Adoption of an urgency ordinance does, however, require a four-fifths vote, which, in Richmond, would mean six of seven members of the City Council.
Adoption of an interim ordinance requires findings that there is a current and immediate threat to the public health, safety, or welfare, and that the approvals of additional entitlements for use would result in that threat to public health safety or welfare, as stated in the first sentence of §65858 (c). An urgency ordinance can be in effect up to 45 days, with potential extensions in the aggregate of two (2) years. However, if the urgency ordinance would have the effect of denying approvals for multifamily projects, then the ordinance cannot be extended beyond 45 days unless the continued approval of multifamily housing would have a “specific, adverse impact” on public health or safety. This means that the multifamily housing would have a “significant, quantifiable, direct and unavoidable impact, based on objective, identified written public health or safety standards, policies, or conditions as they existed on the date that the ordinance is adopted by the legislative body," and there is no feasible alternative to avoid the impact with a less burdensome or restrictive effect.
The Ordinance is not a project under the California Environmental Quality Act (CEQA), in that it maintains the existing physical environment and prevents changes in the environment and so does not have the potential for resulting in either a direct or reasonably foreseeable indirect physical change in the environment (CEQA Guidelines Section 15378(a)). It is also exempt under Guidelines Sections 15060(c)(2), as the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment, and Section 15061(b)(3), as there is no possibility that the adoption of this ordinance may have a significant effect on the environment because it maintains the existing condition of the environment.
Separately, Government Code § 66300 prohibits moratoriums impacting housing development “other than to specifically protect against an imminent threat to the health and safety of persons residing in, or within the immediate vicinity of, the area subject to the moratorium…” Further, any such moratorium cannot be enforced against housing development (which includes development of single-family homes and ADUs) until the ordinance has been submitted to and approved by the Department of Housing and Community Development (“HCD”). The City consulted with HCD back in 2022 with
February 21, 2023
adoption of the original moratorium and has requested HCD approval to enforce this moratorium on housing development. Given the failing KBSS infrastructure and its environmentally sensitive area, an imminent threat exists that would be worsened with new sewer connections to KBSS. The narrow scope of the moratorium and its temporary nature demonstrate that the moratorium is not a pretense for limiting housing development but addresses an ongoing imminent threat to the health and safety of residents that would be severely impacted in the event of KBSS’s failure. In addition, as further explained below, the City is exploring interim measures to allow construction to proceed before the KBSS line is fully repaired or relocated.
An urgency ordinance may remain in effect for only 45 days unless it is extended by another four-fifths vote. Because this hearing has been noticed, after further notice and a hearing, the City Council can extend the moratorium for twenty-two months and 15 days. In other words, the urgency ordinance can be extended so that its full duration is up to two years. Any extension requires a four-fifths vote of the local legislative body.
California law requires that a moratorium ordinance contain findings stating why the ordinance is needed to address a current and immediate threat to public health, safety, or welfare. The additional findings regarding a specific quantifiable adverse impact will also need to be made at the extension hearing as the moratorium impacts the potential to develop multi-family housing units.
Prior to the expiration of an interim ordinance or an extension, the City Council is required to issue a written report describing the measures taken to alleviate the condition which led to the adoption of the ordinance.
Rationale for Recommendation:
The City of Richmond, by operating and maintaining a public sewer collection system, is required by the State Water Code to comply with waste discharge requirements and to protect the beneficial uses of receiving waters. Among these requirements is the obligation to provide the best practicable treatment or control of wastewater as necessary to assure pollution or nuisance will not occur, and to maintain the highest water quality consistent with the maximum benefit to the people of the state.
The City provides sewer service to all the residential lots in Point Richmond, and at least 290 of the 362 parcels include existing residences that should or do connect to the KBSS interceptor. The City cannot insure that the KBSS is functioning as designed. In fact, there is reasonable concern that it may be contributing pollution to the Bay. The KBSS is located offshore within the tidal zone of Keller Beach and is unreachable by City staff during significant periods of the day when manholes are inundated by the tide.
The KBSS is constructed in such a manner that it cannot be inspected or maintained, even after taking extraordinary measures and expense to do so. The pipeline is constructed with tight bends that prevent the normal inspection by closed circuit television equipment. Further, some inspected portions of pipe in 2022 were found to be full of sand, preventing conveyance of wastewater. The pipeline condition of other
February 21, 2023
significant portions of the pipeline is unknown because inspection is impossible due to the tight bends.
Given the condition and location of the KBSS interceptor, additional connections to the pipeline increase the risk of pipeline failure and/or leaks, causing extensive environmental harm with limited City ability to remediate the failure and stop the damage. The pipeline’s defects cannot be repaired or reconstructed without first obtaining regulatory permits from the Regional Water Quality Control Board, California Department of Fish and Wildlife, and U.S. Army Corps of Engineers. These permitting agencies are generally unwilling to approve permits for projects if a practicable alternative exists that would be less potentially damaging to the aquatic environment or less degrading to the nation’s waters. In this case, permitting agencies will likely not permit repair or reconstruction of the KBSS in place because the least potentially damaging project is to rebuild the sewer collection system on land outside of San Francisco Bay. The Public Works Department is analyzing potential alternatives to allow development in the Keller Beach area, including pump stations to connect residences to alternate sewer mains. Additionally, the Department is preparing and implementing remediation efforts to address the existing pipeline conditions, likely including relocation of the KBSS interceptor.
The infrastructure deficiencies that impede new development in and around the Keller Beach Sanitary Sewer also impose substantial burdens on the area’s existing residents.
In light of the sewer system’s physical condition and precarious location, a comprehensive plan is necessary to determine how the vacant land and existing residences should be developed and/or improved, given the public safety concerns related to potential pipeline failure of the KBSS interceptor. The City is taking action towards the replacement of the KBSS with a sanitary sewer collection system in the streets of Point Richmond that can be reliably operated and maintained in compliance with State waste discharge requirements.
However, until the City can assure that it is not contributing pollution to waters of the United States, the City is obligated to minimize any potential pollutant discharge to the Bay by continuing its moratorium on new sewer connections to the KBSS until a replacement sewer is constructed.
Over the past five years, the City has seen an increase in development applications for infill development on vacant lots that would require new connections to the KBSS interceptor. The proposed moratorium would not impact projects that are currently under construction but would restrict the ability of approved projects to obtain building permits until a solution or interim solution is identified. Approvals for any project that is delayed due to the moratorium would be automatically extended for the period that the moratorium is in place.
The purpose of adopting an urgency ordinance and imposing a moratorium on building permits that would require a new sewer connection to the KBSS is to avoid the risk of a catastrophic failure of the current pipeline. It would be irresponsible for the City to allow
February 21, 2023
new sewer connections to the KBSS, as the strain on the already deteriorated system would be exacerbated, placing the environment and current residents in the vicinity at significant risk. The location of the KBSS interceptor places severe burdens on the City’s emergency response capabilities and preventing increased risk related to the potential failure of the KBSS is necessary.
As noted above, the City has also begun to identify and develop options and procedures to allow for development in the Keller Beach area during the moratorium and in advance of the KBSS’ rehabilitation and/or potential relocation. To that end, this moratorium provides the City with time to review and promulgate policies that will allow for development without additional strain/risk to existing infrastructure. Several issues related to the allowance of privately funded and/or maintained pump stations to bypass the KBSS interceptor are being studied, including, but not limited to the location of alternate infrastructure, the implementation and/or design of facilities, operation and maintenance cost allocations, and how subsequent property owners will compensate owners that initially invested in alternate infrastructure.
Alternatives Considered:
1. Limit time of moratorium: The intended expanded time for the moratorium is necessary given the time required to develop an alternative to the KBSS, which is at the end of its useful life and cannot be replaced due to the severe limitations on site access and work limited to periods of low tide.
2. Moratorium to include new fixtures as well as new sewer connections: The moratorium is being limited to new sewer connections to ensure existing owners can do remodels and additions to existing properties as long as a new sewer connection is not needed.
3. Take no action: This was considered; however, given the Study and Assessment completed of the KBSS in 2021, City staff is unable to ignore the high potential for failure should no action be taken to limit the stress on the KBSS.
DOCUMENTS ATTACHED:
Attachment 1 – Draft Urgency Ordinance
Attachment 2 – Keller Beach Map
Attachment 3 – Government Code Section 65858