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This article previously appeared on Sr. Environmental Specialist Julie Wirth’s LinkedIn profile. It is the second entry in a series of stories chronicling some of the personal passion projects of our talented team members.
by Julie Wirth, OBEC Wetland Scientist/Sr. Environmental Specialist
Real firsts are rare.
There’s the typical firsts that you hardly notice, and then there’s the ones that make the hair on the back of your neck tingle just thinking about them.
When I pulled into Astoria, Oregon, for a site visit related to a six-bridge replacement bundle in June of 2015, it seemed like a normal first day on a new project. The breeze was calm, the temperature was mild, waterfront businesses were open, and the first tourists of the summer season were taking in the sweeping views of the 4.1-mile-wide Columbia River.
As I strolled along the decaying timbers of the street-end bridges and trolley trestle, I could imagine how the new bridges would help transform and revitalize the waterfront of this historic city. I also heard the echoing sound of sea lions from below my feet. Those piercing barks of the year-round resident marine mammals would quickly turn this first day on the project from a typical first to an extraordinary first – not only for me, but for the public works leadership at the City of Astoria and the Oregon Department of Transportation (ODOT).
Over the course of almost three years, the tension between replacing these six bridges while complying with the Marine Mammal Protection Act (MMPA) would test the boundaries between what is technically possible and what is legally allowed. On one side, public agencies push ahead with projects to keep infrastructure safe and functional in places like the Astoria waterfront. On the other side, those same public agencies comply with restrictions placed on them to allow nature and its inherent wildness to push back against us.
Ultimately, the presence of sea lions and seals on this stretch of the Columbia would lead the City of Astoria, ODOT, and the Federal Highway Administration (FHWA) to petition the National Marine Fisheries Service (NMFS) for a marine mammal Incidental Harassment Authorization (IHA) — a special document that accounts for native wildlife and allows the project (and its corresponding construction noise, which is likely to disturb the marine mammals’ habitat) to proceed.
It was the first time ODOT had attempted getting an IHA, and I was the senior environmental specialist at the lead.
Looking back, this was the most challenging project I’ve ever worked on in my career. And I loved it.
You know the natural environment. You know the built environment. But until you’ve been part of a project like this, you may not know or appreciate the force and character of the bureaucratic environment.
To Build or Protect?
The way we currently mediate the seeming conflict between built and natural environments is by nurturing a whole new ecosystem – one of laws, regulations, and bureaucracy.
During my 14 years of experience in natural resources permitting, I’ve learned to see the interconnected nature of the bureaucracies that stretch from local governments all the way back to Washington, D.C.
It’s a sort of spider’s web, where Federal agency oversight can be triggered by any number of project elements that touch the expansive regulatory network. The Federal nexus could be funding type, the extent of project impacts, or being located on Federal lands.
When I saw the scope of work for this project in the spring of 2015, the typical collection of Federal and State agencies filled their traditional niches in the ecosystem of oversight: the Oregon Department of Fish and Wildlife (ODFW), the Department of State Lands (DSL), the US Army Corps of Engineers (USACE), NMFS, and ODOT.
Our environmental team understood that the project would have to comply with the 1972 Marine Mammal Protection Act (MMPA). At first we thought that the MMPA permitting might include a level of effort similar to a biological assessment, which, for a waterfront structural project like this, could be a 15-page report put together over the course of a couple months.
The trigger for an IHA ended up being the cumulative and cascading effects of the fact that marine mammals are present in the area, that there are in-water piers that will be removed and replaced, that there is federal funding paying for the project, and that a USACE permit is required. As a result, the National Oceanic and Atmospheric Administration (NOAA) took a dominant position in the expanding oversight ecosystem.
Three Words to Sum Up the Entire Project: Location, Location, Location.
The table of contents that NOAA provides in its IHA template is deceptively simple. The main considerations are: 1) the project components and their effects, 2) the likelihood of an effect, and 3) your mitigation.
Where it gets complex is in the application of the idea that every place is unique. For example: How many places on the lower Columbia River do year-round resident California sea lions hang out on a platform under the glass floor section of a brewery’s dining room…within 15 meters of where two years of bridge demolition and construction will soon take place?
It’s that level of specificity – stated in terms of scientifically defensible project effects, assessment of likelihood, and proposed mitigation – that an IHA requires. Every detail, calculation, and proposed mitigation had to be individually researched, checked, spelled out, revised, and approved in what became a 58-page IHA request.
Once I knew that an IHA was required, I looked at published examples of other IHAs to understand the level and type of detail. While it was eye-opening, nothing in the referenced data was of real use because of the absolute specificity for each project and location.
The work required to define the general project actions was the easiest part because the design team had landed on what the essential structural removal and replacement would look like – along with the timing and methods of demolition and construction.
The most difficult part of the initial work was determining the number of affected animals of each species: California sea lions, steller sea lions, and pacific harbor seals. There were data gaps in the population surveys and we had to use various methods to present accurate estimates in the IHA. This included using some ODFW surveys to try and calculate estimates to fill the data gaps as well as coordinating with the City of Astoria to send people out to monitor the waterfront.
The City monitors were on the waterfront for 15 different days during December of 2017 to watch for any seals and sea lions. While their official visual counts were very low, on every day except one they heard the same echoing barks from under the old structures that I had heard on my first visit.
After I finished estimating the populations, I had to then identify the number of ‘takes’ for each species that would be appropriate for the project. A ‘take’ for the Astoria project is defined as any disturbance/harassment of one of the animals by the demolition and construction activities.
After the months of work to finish the IHA request and submit it for review, it turned out that the submittal milestone was only the early midpoint of the whole story.
The Science of Permitting for an IHA
While submittal of some other types of permitting marks the process as essentially complete, IHA submittal marks the start of intense coordination that essentially equates to four months of scientific paper peer review, critique, and revision. This type of live versioning is a radically different experience from the typical submit-reject-resubmit process that we go through for many permits, but in the end it was a really positive experience.
During the pre-submittal phase, I worked closely with the NMFS/ODOT liaison at the regional office to compile the most precise, accurate, and reasonable request that we could. During the post-submittal process, I worked a lot with the senior analyst at the East Coast NMFS office to hone in the details even more.
The most dynamic parts of the refinement were the specific design components and the associated construction methods and schedule.
I stayed in close contact with our design team to get design updates on a priority basis, and would immediately turn around and work with our in-house construction inspection team to translate those changes into updates to the construction effects and likelihood of impacts. OBEC’s inspection team leader, Jason Kelly, was invaluable in being able to estimate what construction actions would happen, when, how, and for how long.
We dealt with various construction methods, production rates that a contractor could be expected to deliver, and the resulting construction time estimates (CTEs). The specificity of the place proved to have a significant impact in these discussions and calculations, as the area is tidally influenced. With 8- to 10-foot tides along the Astoria waterfront, the time of day determines whether the construction work is actually taking place in the water, or ‘in the dry’ – which in turn affects the level of potential impact on the marine mammals because noise and vibration travels so differently through water than through air.
It turns out that the best time for dry construction at the site is in the middle of the night…which would bring with it its own set of cascading considerations such as noise impacts in residential areas of Astoria and possible construction bid cost increases from the staffing, safety, and equipment that a contractor would have to consider to build at night.
I even worked closely with a noise specialist to determine how much existing infrastructure “buffered” sound. This included the existing deck as well as the buildings. Depending on the construction activity, these structures dampened in-air noise and I wanted to make sure that was considered.
When all was said, calculated, and done, we established a 1,600-meter behavioral disturbance zone for pile removal activities, a 398-meter behavioral disturbance zone for pile installation, a 55-meter shutdown zone for pile driving, a 15-meter shutdown zone for pile removal, and a 10-meter shutdown zone for above-water construction activities. Any time one of the three identified marine mammals enters a shutdown zone, construction work stops temporarily.
The Art of Permitting for an IHA
All the calculations and coordination represented the scientific side of the IHA process. The artistic side of the equation lied in proposing the site monitoring, which was a significant component our overall mitigation plan. It had to be right for the project, for the location, and especially for our client, who was paying for it.
During my initial research and review of other successful IHA requests, all the examples – except one – included daily monitoring. During early drafting of the IHA, I had put together a full scope and breakdown of costs for the City of Astoria and ODOT so that everyone could see a realistic estimate of how much it would cost to have daily monitoring of the shutdown and behavioral disturbance zones.
It totaled out at roughly $645,000.
The City and ODOT asked me to put together a mitigation plan that would uphold the requirements of the IHA, but would be customized to their project to reduce mitigation costs and help keep as much funding as possible available for construction of their new waterfront bridges.
Only one other IHA that I had seen had proposed anything less than daily monitoring, so we faced the real possibility that daily monitoring was practically the only option that NMFS would readily accept. However, we crafted a detailed plan that was appropriate for the site, leveraged cross-discipline opportunities for staff working on site, and supported legitimate mitigation.
What we proposed was limited duration and intermittent monitoring that included two days of monitoring at the start of construction activities, then monitoring every third day. It also included once-weekly monitoring during vibratory pile removal and an innovative use of the on-site construction inspector. We proposed educating and training the construction inspectors to be able to perform monitoring in support of the IHA at times when an environmental specialist is not on site.
The end result for the project was a final monitoring budget of only $89,000.
Being the first that we knew of to propose limited duration and intermittent monitoring during pile installation activities was definitely cause for some nervousness, but we were confident that it was the right answer for Astoria.
We were right.
On April 12th, 2018, I was thrilled to learn that I had successfully obtained ODOT’s first IHA required by the MMPA. This was a significant accomplishment for me and the rest of OBEC’s environmental group, and a real testament to our approach to natural resources permitting.
The project is now covered for incidental harassment of up to 43,656 sea lions or harbor seals that may frequent the construction site during the first year of the project. Our team will report on the monitoring results after the in-water work period (IWWP) this winter and then request another IHA approval for the second year of construction.
This authorization, along with the other permits, is the type of accomplishment that leads to a lot of learning and a lot of reflection. I’m proud to say that the work I did allows the transformative waterfront project to move forward, while demonstrating stewardship of both our natural environment and of the public tax dollars that fund these types of essential infrastructure projects.
The big technical take-away for others who face preparing an IHA request is that post-submittal IHA coordination is a lot of work and you should plan for that up front in your statement of work and breakdown of costs. Also, most folks think they can push the limits on permit review timelines, but I would definitely not do that with one of these again!
The big personal take-away is that this is an amazing field to have made a career in. I think it’s really rare to encounter collaboration of a team of people from various agencies and organizations who could be at odds with each other, but aren’t. Instead, we all come together to comply with the law in order to protect these animals while also getting the project built for a reasonable cost and in a reasonable timeframe.
I’m considering presenting my first IHA experience at a conference in the future, but until then, I would love to hear from others who have, will, or could experience an IHA nexus of their own.
If you’re passionate about marine mammals, or interested in any part of a natural resources permitting career, leave a comment, or send me a message on LinkedIn.