21 Jan Fly Fishing and Change Orders: An Unlikely Connection
Reading Time: 4 minutesBy: Stephen E. Fauer
My father told me something very prophetic when I was a child. He said, “While fishing, other fishermen may say, ‘You should have been here yesterday, the fishing was unbelievable.’ But don’t believe them. Because that’s what they all say.”
Fishing is my favorite hobby. I fly fish with some frequency, and I often invite friends to join me on the rivers near my home. While I’ve never said, “You should have been here yesterday,” I have, on occasion, mentioned that the fishing has been good. Then, when a friend hurries over the next day to fish, he finds that the fishing is not so great, causing him to distrust my evaluation. But fish behavior is contingent on many variables. Even when you think you’re dialed in on their behavior, conditions change, and the behavior of the fish changes along with them.
In like manner, sometimes conditions change in environmental work, requiring that tasks be performed that were not covered in the original proposal. As a project progresses, if ESA determines that an adjustment or amendment to the original scope of work is needed, a change order is presented to the client. And, as with evaluating the fickle fish for my friends, these change orders can cause ESA’s clients varying degrees of consternation and, at times, distrust.
Sacred Duty, Sacred Trust
Project proposals are based on a scope of work that defines what we will do and for what price. Sometimes, the scope of work is highly defined. But, in most cases, the opposite is true; that is, the scope of work is loosely defined. It naturally follows that scopes of work that are precise result in pricing that is accurately defined. Loosely defined scopes of work result in prices that may be mutable. Such loosely defined scopes of work are often necessary because of the variable nature of the environment. And, often, a loosely defined scope of work will result in a change order.
When ESA is authorized to execute a proposal, it is our sacred duty to perform the work in conformance with the scope as described in the proposal. In almost every instance, ESA is hired to perform environmental services that the property owner MUST do but most certainly would prefer NOT to do.
We have declared from ESA’s inception that we are absolute client advocates. We pledge to do everything in our power to render an outcome that favors the best interests of each client. If change orders are necessary to some environmental projects, how do we reconcile what appears to contradict ESA’s stated goal as an absolute client advocate? Do change orders undermine the very essence of this concept?
What Lies Beneath?
At the onset of an environmental investigation, ESA takes samples and analyzes them in a certified laboratory. We follow strict procedures prescribed by the state regulatory authority to ensure that the same procedures are followed at every phase of every project at every site. And then, we evaluate the data generated. This is empirical. So, if this procedure is empirical and governed by guidance documents, why do change orders exist?
Most of ESA’s projects involve investigating and remediating soil and groundwater. When we write a proposal, we may have an idea of what lies below, but we won’t know for certain until we take samples and analyze them. Upon collecting and evaluating the data, ESA will then suggest a path to advance the project. Throughout the entire process, without deviation, ESA keeps a constant eye on the client’s ultimate goal — project closure (in New Jersey, it’s called a Remedial Action Outcome, or RAO).
There is another question to be asked here. How does ESA know how many samples to take? After all, the more samples we take, the more money we make. I call this conundrum “adequacy of sampling” and it presents another degree of uncertainty for our clients. The number of samples taken and the analytical parameters to be investigated always begin by following the technical guidance provided by the regulatory authority. Note that “guidance” is the key word here. Guidance documents provide a roadmap. And sometimes that roadmap has one route that must be followed. But, more commonly, multiple routes are available. So which route to use?
Art and Science
ESA, like all consultants, is staffed with scientists. We live and die by data. Yet, there is another component to what we do on an almost daily basis that makes our profession profoundly interesting — we marry science with art. The science part is mostly easy, but it is the artistic element that is the source of ESA’s advocacy strategies.
ESA has stated (and published) since its inception that, “You don’t have to do everything the NJDEP tells you to do.” In the early 1990’s, some of ESA’s staff feared backlash from the NJDEP due to my published words; it never came. Why? Because we were right. Both then and now, you don’t have to do everything the NJDEP tells you to do. The degree of latitude allowed by NJDEP has slowly diminished as their regulations have become more stringent over the past 30 years – but latitude does still exist. In fact, the LSRPs who act as your case managers are granted authority to use “professional judgement” when rendering outcomes. That is why two different LSRPs working on the same case might each grant an RAO using two different scopes of work and prices. As you might guess, this becomes very confusing for our clients. Which LSRP is right? How does the client decide who to use and trust?
Fishing for Answers
It is said that 10% of the fishermen catch 90% of the fish. (Full disclosure – I am not among the 10%.) Fishing, especially fly fishing, is an inexact pastime. Sometimes the stars align, and you experience a day of fishing that occurs once in 10 years. Other times, you get skunked. Even elite fishing pros get skunked on occasion because, sometimes, that’s just the way it is.
But what about the environmentally regulated community? How do they identify an environmental consultant who will fight to minimize costs and change orders? How do they identify an environmental consultant that will put the client’s best interests ahead of their own? Answer: hire a consultant that unequivocally advocates for every client, every day.
Advocacy happens because ESA does all it can to make it happen. With a little bit of science and a little bit of art, sometimes the stars align, and ESA can reduce the work needed to get an RAO, thereby saving our clients many thousands of dollars (and, in one recent case, many hundreds of thousands of dollars). But sometimes the stars don’t align, and sometimes the data isn’t favorable and instead indicates that a change is required. As in fishing, sometimes that’s just the way it is.
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