Session C7.1

Post NEPA Environmental Management and Compliance: Emerging Best Practices

Brian Kennedy

2:15 – 2:45 PM ET

About the Presentation

Methods for incorporating NEPA mitigation measures permit conditions and other environmental obligations into the Final Design and Construction phases of a project must effectively transfer the value of impact avoidance, minimization, and mitigation obligations from environmental documents into a completed project that reflects decision-maker, regulatory agency, stakeholder, and public expectations for environmental protection. Each commitment must be translated into design details and/or construction activities and be tracked and reported on in terms of compliance. Lessons learned and the tools and techniques that are being used on the Gordie Howe International Bridge (GHIB) project provide in-depth insight into what it takes to scale and optimize a post-NEPA environmental management program.

The project's Final Environmental Impact Statement and Record of Decision, and the Canadian equivalent, provide the primary environmental obligations addressed under the environmental management and compliance program. The key elements of the Environmental Management System (EMS) include an overall international, interdisciplinary Environmental Management Plan (EMP) supported by a series of tracking matrixes, Environmental Monitoring & Management Plans (EMMPs) and Constraint Maps for each country. The EMP provides the framework of how Bridging North America (BNA) coordinates and implements environmental management activities throughout the design and construction of the Project. The Environmental Obligations Matrix is the roadmap of the EMS that includes an exhaustive list of environmental requirements that must be implemented within the project (i.e., project agreement obligations, legal and other requirements, permit conditions, community benefit commitments, etc.) The matrix is linked to the EMS, the EMMPs, training, environmental monitoring, inspections, and compliance audits.

This presentation will describe the structure, roles, responsibilities, services, and deliverables of the EMT under an EMP and EMS that was certified under the 2015 ISO 14000 standard. The registration marks one of the first P3 construction projects in Canada to receive a certificate of registration for ISO 14001:2015. The EMS has been designed to address issues in Canada and the United States and to integrate with the Project's: - Quality Management System (ISO 9001:2015 Compliant) - Health and Safety Program - Security Program - Sustainability Management Policy and Associated LEED and Envision ScorecardsThe descriptions will illustrate all aspects of this comprehensive approach while focusing on lessons learned and best practices for specific disciplines and various factors that influence the scale of what is necessary to address management and compliance.

The presentation will provide participants with a framework for conceptualizing a customized Post-NEPA environmental management program for their project and will provide insight into what features, and characteristics of a mitigation measure in a NEPA document are needed during Final Design and Construction to make the measure and their outcomes effective.

About the Speaker

Brian Kennedy, AICP
Senior Project Manager

Brian Kennedy is a Senior Project Manager with 38 years of environmental impact assessment and permitting, environmental process management, and public involvement experience spanning the planning, design, construction, and operational phases projects. Brian's client experience includes working with a wide range of public and private sector clients including FHWA, FTA, FAA, BLM, USFS, DOE, DOD (USAF, US ARMY, USACE), and NPS. Brian has nationwide experience working with State DOTs and transit agencies. His diverse experience and in-depth interdisciplinary technical understandings and innovative contributions to public engagement and communications combine to offer clients timely, technically accurate, and understandable communications, documentation, and compliance processes.

Clayton Sereres, M.Sc.Eng., P.Geo.
Interim Director Environmental

Clayton has 12 years of experience in developing and implementing policies, plans, and procedures for environmental protection, remedial work, and environmental management systems in both the public and private sectors. His experience is unique as it is binational in nature, allowing for a strong understanding of the similarities and differences in Canadian and United States environmental regulations. In the last 5 years, he has focused on environmental protection and permitting for P3 infrastructure projects.

Session C7.2

Developing an Incidental Take Permit System for Migratory Birds: Lessons from Other Fish and Wildlife Permitting Processes

Michael Mayer

2:45 AM – 3:15 PM ET

About the Presentation

The Migratory Bird Treaty Act was enacted in 1918, passed to implement a 1916 convention with Great Britain, as the governing body of Canada. Codified at 16 USC 703 712, the law prohibits the take of most migratory bird species that occur in the U.S. Take is defined by regulation to mean "pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect". Since its passage, the law has also been used to implement subsequent conventions with Mexico, Japan, and Russia. At the time of passage, the law was intended to protect migratory birds from overharvesting and the commercial wildlife market. However, a chilling study released in 2019 indicated a projected net loss of 3 billion birds in North America "approximately 29% of the 1970 abundance” which suggests additional conservation is needed (Rosenberg et al. 2019). There has been a long-standing debate on whether the law protects migratory birds from incidental take.

For decades, the United States Fish and Wildlife Service used prosecutorial discretion to enforce the law in its application to incidental take. However, in January 2021 the Service issued a rule that concluded the Act did not apply to incidental take. This rule was short-lived, being revoked in October 2021 with the Service reinitiating a rulemaking process concerning incidental take. In addition, the Service has also proposed to regulate such take through a permitting process.

This paper examines the need for such a permitting system and provides a review of other fish and wildlife protection laws that have similar permitting schemes, such as the Endangered Species Act, Marine Mammal Protection Act, and the Bald and Golden Eagle Protection Act, among others. This paper will provide a set of recommendations for developing a permitting system that protects migratory birds but also provides a clear process for industries applying for such permits. Any permit system ultimately developed will need to be one that is simple in nature, implementable by the Service in a timely fashion, and provides certainty and assurances to those seeking permits.

About the Speaker(s)

Michael Mayer
Senior Environmental Planning Lead
HDR, Inc.

Mike, a senior environmental planning lead with HDR, has over 20 years of experience working on federal, state, and private client projects related to energy, natural resource management, and mining. Michael uses his unique training as both a biologist and a lawyer to address resource issues in a scientifically and legally defensible manner. With histraining, he is able to navigate the myriad of regulatory requirements applying ecological knowledge to planning and compliance efforts, navigating natural resource laws such as the Endangered Species Act and Migratory Bird Treaty Act. Michael is the current Vice President of the NAEP and the Minnesota AEP.


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