July 12, 2001
Shedding light into the permit ‘black hole’
By MARK G. PEDERSEN and BARBARA L. ERICKSON
Shapiro and Associates
A black hole. A log jam. A roll of the dice.
These are only a few of the descriptions of the extra permitting required by the Endangered Species Act (ESA) that Puget Sound developers and land owners are experiencing. Permit applications, accompanied by required biological assessment (BA) reports, enter the system and it’s anyone’s guess as to what will happen or when.
Not only does the process drag on, most often due to a lack of agency reviewers to handle the workload, but the reviews are often subjective and inconsistent among the parties involved in making determinations of impacts — the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service (USFWS), and the National Marine Fisheries Service (NMFS).
While the agencies’ intentions for initial guidance for a “determination of effect” for projects have been good, the guidelines often are so vague that uniform interpretation is problematic at best.
Faced with this situation on the majority of its projects, Waterfront Construction, a company that builds over-water structures, approached environmental consultant Shapiro and Associates to see if there might be a way to streamline and standardize the permitting process for structures such as piers, docks and bulkheads.
They, joined by attorneys from Foster Pepper & Shefelman, met with representatives of the corps’ regulatory branch to see what could be done to facilitate permit approval for pier and bulkhead projects in Lake Washington and the San Juan Islands. The group recommended the development of a template or “Reference BA” to streamline the process.
The corps’ process
The corps is the federal lead agency in granting Clean Water Act Section 404 permits and Rivers and Harbors Act Section 10 permits, both required for construction of over-water structures. Before these permits can be approved, the corps also must evaluate projects for compliance with other federal statutes, including ESA.
To satisfy the ESA “consultation” requirement, the corps forwards to NMFS and USFWS a biological assessment for each project that may cause an impact to see if the two agencies concur with corps’ findings and are willing to allow a project to go forward.
The corps has been developing proposed ESA programmatic consultation strategies that will streamline interaction with the other two agencies and speed the ESA consultation process. It is a phased process.
Phase 1 identifies activities that would be of short duration or have low impact on salmonid habitat and would result in a determination of “not likely to adversely affect.” Included are: mooring buoys, temporary recreational structures, scientific measurement devices, oil spill cleanup, fish and wildlife harvesting, and minor bank stabilization repairs.
Phase 2 focuses on restoration and rehabilitation activities — such as removal of fish passage barriers, and freshwater, marine/estuarine and wetland restoration projects.
Phase 3 includes other targeted activities for streamlined ESA compliance, including developing strategies for over-water structures, bank stabilization, utility lines, road projects, maintenance dredging, small wetland fills for residential houses, and port and ferry terminal operation and maintenance activities.
What Shapiro, Waterfront Construction and Foster Pepper & Shefelman proposed fit under the corps’ Phase 3 activities, so the corps asked Shapiro to proceed with the development of an over-water Reference BA. The idea was recently presented to USFWS and NMFS, both of which were interested in the approach. The city of Seattle and other land use attorneys also are working with Shapiro to refine the document.
The industry is hoping the Reference BA can be targeted for completion by Aug. 1, the beginning of the construction season for over-water structures.
The basic idea is to create a standard document for a specific geographic area that has common physical and biological elements and would be affected by similar activities that could impact the near-shore environment. When a specific project in the geographic area seeks permits, the proponent can provide three to four pages of project-specific information and make reference to the approved 30-page template. This dramatically cuts review time and costs.
A biological assessment typically includes:
The over-water structure Reference BA also includes a method that seeks to quantify potential impacts of projects on salmonid habitat, and provides for compensatory mitigation. A primary reason such quantification is important is that current NMFS guidelines as to what projects are “not likely to adversely affect” habitat are extremely vague: “New minimum sized pier with narrow, elevated walkway, minimal number and diameter pilings. Structure provides for a shallow near shore migration and feeding zone. Project provides for aquatic and riparian vegetation rehabilitation.”
How narrow is narrow? How elevated can a walkway be before it affects habitat? What is the maximum diameter of piling? How shallow is shallow?
Quantification of these factors and related impacts is accomplished through the use of a matrix that evaluates the pre-construction and post-construction habitat, and the design parameters of the structure to be built.
The matrix, part of the “urban lake pier impact evaluation method,” the development of which has been lead by Shapiro with assistance from the city of Seattle, makes a few critical assumptions, including (1) natural shorelines are better than highly modified shorelines for listed salmonids, and (2) narrow, high piers allowing light transmission have less impact than wide piers that create maximum shade.
By using the evaluation matrix on a specific shoreline project, clear guidance is provided on the design of pier facilities and the adjacent shoreline that will improve the near-shore habitat toward “properly functioning condition” for salmonids. If project mitigation is necessary, habitat improvements could include actions such as creation of shallow water habitat, planting emergent and riparian vegetation, and substrate modification.
Specifications of the site and the pier design are entered into the matrix that identifies impact threshold levels. If matrix scores fall within the threshold, the project should receive a “not likely to adversely affect” the salmonid habitat. This information is forwarded to NMFS and USFWS, who review the findings. If they agree, they write a letter of concurrence with corps findings and the corps can issue the Section 404/Section 10 permits. This process is called an “informal consultation” under ESA.
If a particular over-water structure design results in evaluation matrix scores outside the threshold limits, it can be modified to avoid or minimize the impacts. If, after reworking the design and mitigation, the project is still outside the threshold limits, the project would receive a determination of “likely to adversely affect” salmonid habitat, and would require a “formal consultation” and Biological Opinion (BO) from NMFS or USFWS.
The BO analysis may determine that “reasonable and prudent” measures for conservation, if followed, would allow the project to continue. They then would issue a “take permit.”
By using the Reference BA and evaluation matrix, project proponents can avoid this formal consultation and associated time and money costs.
Mark G. Pedersen is vice president and general manager of Shaprio’s Seattle office. He is a senior aquatic scientist who has spent over 30 years dealing with Northwest fisheries and ESA issues.
Barbara L. Erickson is Shapiro’s marketing director and a senior operations manager. She has 20 years of experience in the A/E field.
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