I am trying (in a very small consulting firm) to expand more into the biological realm of work...we mostly handle storm water and hazmat.

My employer is concerned about the liability issues with wetlands and T&E species. What can I tell him? (ie. he's afraid if we win work, my team may overlook something on accident and he will get sued)
Although I mostly lean towards the more conservative 'green' side of things...he is worried about mistakes...a very real worry. Is this covered under errors and omissions insurance?
Please help!

There are certainly some liability issues with any kind of work you do as a consultant. I've worked both in small and large consulting firms (50 employees to over 8,000) and each of them had some sort of E&O policy.

Your boss does have some legitimate concerns - any consultant is subject to getting sued for mistakes. I guess you have to think of the costs/benefits involved. If you perform a wetland delineation and provide that to the client without formal approval by the US Army Corps of Engineers (or state delegated agency), then you may put yourself at risk (because you have no binding document to support the decisions you made based on field observations/testing). All you have to defend yourself is "professional judgment" which can be certainly argued in a court easier than maybe a binding document.

Communication with appropriate documentation is important. Detailed scopes with contract terms and conditions that protect you are just as important as the product/service you provide.

I'm not sure if this helps or not. Good luck on trying to expand the company's services.

In general your liability is going to revolve around the concept of negligence.

While this may seem to be a simple concept, the legal profession has done a lot to make this more obscure than perhaps necessary.

According to Black’s dictionary (the font of all legal truth), Negligence is defined as “The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do”.

WHEW!

Having said that, the dictionary goes on for two more pages further defining the types of negligence. This can range from “Slight” (A failure to exercise great care), to “Gross” (The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another), to “Per se” (The unexcused violation of a statute).

Depending on the statutory environment of your state, you negligence must rise to one of the levels defined. For example, a Doctor (MD) must be found guilty of “Gross” negligence.

Also, consider the wording of your contract with the customer. You can protect yourself by the insertion of “best practices” clauses

Regarding T&E species, contact you local Game & Fish or EPA office and see what they have on “Safe Harbor” agreements.

Read the E&O policy! There may be further definitions and constraints found there.

It is one of our greatest freedoms, in this country, that anyone can sue anyone for just about any cause that will pass initial brief revue by the court. The big question is if plaintiff will prevail in their suit.

Now perhaps you see why Lawyers make more money that Biologists.

No .. I am not a Lawyer and the above should not be considered as legal advise. That would be illegal for a non Bar registered individual to present. You are advised to contact competent legal advise in this matter. I have, however, been to law school and have taken as many contract and civil law courses as most lawyers. The above is presented in an educational and informational context only.

My wetlands consultant does not carry professional liability insurance and has a clause in his contract that limits his liability to re-performing any work that does not meet recognized professional standards.

When I asked him about insurance and liability protection, he said that he does not want to work for anyone who may desire to sue him in the future. I hired him because he was very knowledgable about land owner rights.

Later, the Corps disagreed with his report and threatened to issue a Cease & Desist order against my project. I was facing hugh losses. My consultant fought very hard and successfully persuaded the Corps to go away. We finished that project and he still works for me.

He once told me that he had lost some business because he does not carry insurance, but he has never been sued. Apparently, this approach works because he seems to be very busy.

While I applaud your consultant for being a reasonable person, not caring liability insurance is just not that bright of a thing to do in this day and age. There are a thousand things that can go wrong on a job, to include having someone fall over dead or be hit by some large piece of equipment. I have never been on a job site where all contractor parties were not required to carry liability insurance. I would guess that you carry a good sized chunk of liability insurance to cover the job site. All that would be necessary is for some plaintiff to convince some jury that your consultant’s actions were the proximal cause of a loss and he would end up with a shared liability. With no liability insurance all of his assets would be attachable – even if he is incorporated (piercing the corporate veil). Consider this … if he does not carry insurance, who ever is going to sue is going to come after YOU! Remember … YOU suing HIM is only one side of the equation. I can think of a lot of reasons some other party might want to sue HIM and baring that they will go after YOU as the prime.

Having the “re-do” clause in your contract is a great idea, but it is not going to protect you from some substantial loss. How to you “re-do” a serious bodily injury of death? This is not a limit to liability. A 1st year law student would blow right through that.

You should not carry liability insurance to protect yourself from someone who may desire to sue you in the future. You do it as a prudent part of doing business. I don’t think that there is anyone out there that goes to a job site with the intent of screwing up. However, things do happen, and your culpability may reside in what a jury can be convinced and not what the “truth” is. BTW, how does he KNOW that someone MAY desire to sue him in the future?

I am surprised that your consultant did not engage CoE at an earlier point. Having a regulatory body step in at the 11th hour with a negative finding is one of the worst things that can happen to a job.

Again .. not legal advise … just sharing knowledge and experience gained.

Jan Albright said:

"I am surprised that your consultant did not engage CoE at an earlier point. Having a regulatory body step in at the 11th hour with a negative finding is one of the worst things that can happen to a job."



My consultant did not engage the Corps because he knew they would not agree with his findings. He relied on relevant court decisions and the Joint Memorandum to determine federal jurisdiction on my property, and prepared a comprehensive report to support his findings. When the Corps intervened, we gave them a copy of this report. They did not agree with the report and threatened to issue a Cease & Desist order. We threatened to seek a restaining order from a federal judge and they dropped the matter. It was a stressful but fascinating experience which stimulated my interest in wetlands law.

I live in the Fifth circuit where there is a dispute between the Corps and the Courts on the limits of federal jurisdiction. This approach may not work outside of the Fifth circuit. Other wetland consultants that I have met do not follow this approach.

Have a Happy New Year

Mr. Stevens,
An interesting tale.
I would guess that this is a SWANCC related issue, yes?
Could you share with us in what state this example occurred?
What was the liability issue that concerned you or the consultant?


“mtollett”
Are your questions getting an answer?
Have we scared you off?
In the initial post you stated that you were interested in “storm water and hazmat”.
Your also stated “liability issues with wetlands and T&E species”.
Is this, like, “hazmat being washed by storm water into a wetlands and impacting a T&E species”?
A few specifics would help in identifying possible liability issues.



“The more I study Lawyers, the more I like Bacteria”, anon.

Mistakes are always a possibility. Some of the contract clauses mentioned above can be useful. I would offer one more suggestion. Talk to your employer about developing your professional credentials. Being "recognized" as an expert does not eliminate the threat of lawsuits, but it can help you defend yourself if you are sued. SWS has a Professional Wetland Scientist (PWS) certification program. This certification does not make you an expert but it can help a worried employer or client, a judge or jury, or other professionals feel more comfortable with your opinions and products. And if you can't meet the certification requirements it can tell you what you need to do to improve your qualifications. I have not pursued it but the PWS program does offer liability coverage. Check it out!

I would also expect that your employer aleady has some kind of liability insurance that covers your more traditional engineering and/or design capabilities. You might want to review this with your insurance carrier.

Good Luck!

You didn't scare me off! However, I am feeling like a little fish in a big pond...

The suggestions have been wonderful. Thank you for taking the time to share.

I'd like to clarify my first posting. I have a degree in bio with emphasis in botanical/environmental science. I was employed with a firm that downsized their Biologists. I found another job soon after with my place of employment. Currently we handle storm water and hazardous materials issues. For the past year, the consulting I have done is in regards to that.

My interest is in Biology. When I was hired 1 year ago I was promised that I would be able to expand his business with respect to Biology (although I only have 2 years professional experience in that area). I was written into various proposals and have tried to obtain work through other sources without luck.

I am now pushing harder to take the Wetlands Delineation Class (although I have printed a copy of it and have read it). I have talked with several biologists that say this is my one token to get 'in' on the jobs. However, my employer sees is as a large expense that may not bring in the money. He says 'show me the money and I will send you to the training'. I don't know how to do that.

Along with that he wants written business plan and liability assessment.

I have until April to convince him that I need the class, why I need it and why Biology is a good direction for his company.

After reading what you have to say, I think this may be too large of a task for me at this stage of my career.

I wanted to gain the experience to further my career with the end result being international biology work.

At this pace, I may never accomplish that goal.

I suppose your next suggestion would be to find an entry level job and work on my goals there. Perhaps that is the best option?

It seems you may be in the wrong type of company for your background and goals. It may be best to look for a company that recognizes your potential and your interests and is willing to help you grow in that direction. In your present situation you may always be pushing against a basic attitude that doesn't appreciate the value of your education and goals and seems to only value money. I'm also not sure if the delineation class would be that much help if your goal is international biology. - Are you thinking more on the lines of restoration or inventory work in other countries? If so maybe working with a company/or government agency that does restoration and/or inventory work may be a good option for you.

Is your desire is to do delineation?
If you want to get into delineation, on which side of the table do you want to sit?

Or do you want to get more into the research and / or management aspect?

While I am not that conversant with the delineation aspect it does seem to me to be a case of putting yourself on the firing line between the “pave it all” and the “save the ducks” people.

For myself I get a much bigger kick out of the research aspect but for this you better find yourself a job with some university or perhaps some outfit like the Nature Conservancy. As far as management goes you would be better off with Game & Fish, Wildlife or even (gasp) the Corp. From what I read about your background you could certainly move into one of those jobs.

As far as the liability associated with delineation (and I’m no expert here) it would appear to me that there is at least one major point. If you tell some developer that the wetland ends “here” and they take your word and build a (shudder) road and the Corps comes back later and slaps you then there is a substantial damage figure on the table. The outfit that hired you to draw the line is going to be looking for someone to pay and that person may, arguably, be you (or the firm you represent).

Remember, wetlands delineation constitutes a “taking” and can substantially impact what a property owner can and can not do with their property. In many aspects this is antithetical to the foundations of our way of life here in the USofA.

Jan Allbright said:

"...As far as the liability associated with delineation (and I’m no expert here) it would appear to me that there is at least one major point. If you tell some developer that the wetland ends “here” and they take your word and build a (shudder) road and the Corps comes back later and slaps you then there is a substantial damage figure on the table..."

From my experience as a developer, it is far more likely that the Corps or other regulatory agencies that review Corps permits, will change the delineation or permit requirements in the middle of a project, thereby delaying and imposing additional costs. Many environmental regulatory agencies are biased against land development, and this is sometimes manifest through incompetent or negligent acts calculated to harm the developer, and long delays over minor issues.

Many land development projects are routinely stalled and encumbered with expensive and irrational requirements. Often, land developers are forced to abandon projects and suffer considerable financial losses. This happens frequently throughout America, but is especially severe in California. In California, the Corps, EPA, US Fish & Wildlife, along with numerous other federal, state, and local government agencies (and ad hoc committees), regulate and control land development. The regulatory opposition to land development in California is very strong. There are very few land developers, and financing is difficult to obtain because the risks are too high. The regulatory agencies in California actively suppress land development projects.

A developer can not buy insurance to protect against regulatory abuse. There is no reasonable legal recourse. Most developers recognize environmental regulatory agencies as their greatest risk. This risk is passed through in the cost of new houses. The average price of a modest new house in California is over $500,000, with approximately $100,000 of this cost going for permits and environmental fees. Most of these environmental fees are used to pay the salaries of thousands of government regulatory personel that control California. There is a shortage of affordable housing, the cost of living is high, and many people who live there are trying to leave.

This message has been edited. Last edited by: Johnny Stevens,

Developing in California:
From what I see in California (in my neck of the woods) there is not such a thing as a 'modest' new home. Most homes are sprawling monstrosities, and eyesores and waste of much space...in my opinion, we can do better. Why do we need such large homes? Perhaps that has something to do with the high costs also.
Nevertheless, I do agree with the thought that Cali agencies are slowing process..but how about the NEED to slow growth here? What would happen if we developed without thought of detrimental effects? We have seen the devastating results from it?
Perhaps we are in the new stages of the industrial revolution? We have found a mistake in our 'calculations'...we are reforming ideas and ideals...this will take some time. It took time for 'growth' to aggravate and pollute our land and waters. There is a solution, but it might not be with our current regulations, it is a dynamic system. Until we start with children and a fundamental core value system within the next generation to protect our valuable resources, this may be the way things have to be.
What we really need is a huge paradigm shift, another industrial revolution, whereby we learn from our mistakes and move forward learning from the natural cycle of things...the permits and actions ordered during development are there for a reason, and it's not just to keep people employed.
I have seen positive change already and I do not have many years of experience. But I do know there are a great deal of people out there trying to make things fair for developers AND our natural system, with the ultimate goal being health and safety of the general public. This is a noble saga...if you have more than 2 children or know someone who does...you can thank them for it.
I realize it is frustrating, but there is much talk about streamlining the process. The main factor about plowing over everything: Extinct means gone forever. We are young on this earth. Until we feel confident playing with fire, perhaps we should do a little research.
Best wishes that we may meet in the middle someday!

Wow, and to think that this post originated asking questions about liabilities...

For the developer - I'm not a lawyer, but remember from my public life days, there was something called "equitable estoppel" that basically meant an agency, person, group, etc. can't lead you down the primrose path to get something approved then all of a sudden changes their mind. Maybe you should talk to your lawyer friends about this - it might help with your USACE negotiations.

Desires:
In answer to the other questions...the desire is to do FIELD WORK and understand interrelationships of systems. I am happy doing a myriad of things from underwater work all the way to the mountains...I just have a thirst for knowledge and process and 'how' to properly deal with the population explosion with minimal impact...in our daily routines...industry, public transport, health...what impact do we have on wildlife and how do we decrease that heading towards homeostasis? What regulations are currently in place to address these things? How can we 'get the kinks out'?
Is a global initiative applicable? My thoughts are...it's a good place to start, but local knowledge is best. However, we are so new to the concept of developing WITHin natural systems that baseline 'BMPs' should be established wherever development is taking place. It should be ingrained into the process...just as we brush our teeth every morning to keep from ruining our gums and rotting our teeth.
OK. This posting sounds idealistic and (gasp) flaky, college student baloney. BUT, I do strongly believe we can accomplish increased attention to natural systems and incorporate ourselves into them instead of the other way around.
So, the answer: no, I don't have to do Wetland Delineations...but, I have been told they are paramount certifications to have AND every job posting I read asking for a Biologist recommends it.
I would like to work in a highly progressive, motivated atmosphere where people are working towards understanding and positive change. I am looking for a cause and a career.
My thoughts at this time are that the more training I have, the better off I will be. Although the true learning is in the experience.
That is why I should take the course.
But that is not what I can tell my employer.

I can tell him that he will make $$ sending me into the field to do delineations and plant identification. So, this is a 'real' gameplan for now. He is worried about liability and costs.

I can do the job. It's the convincing part I am concerned about.

At this point I need to put the reading I have done on the regs to use. All I am trying to do is use my company 8a certification to be included on larger jobs with a set-aside. That is all I need at this point. I do not expect (nor want to be) the lead for any project. I realize I am not ready for this step. But I have the will to learn and eventually lead. My question is,
If you had a business and were considering allowing an employee to join other Biologists (as a sub)...what are the things you would need to hear to convince you that it is a good idea?

quote:

---

Originally posted by mtollett@rockhut.com:
My question is,
If you had a business and were considering allowing an employee to join other Biologists (as a sub)...what are the things you would need to hear to convince you that it is a good idea?

---

The one thing I would want to know is if I can bill at least 3X whatever I am paying the Biologist!

What exactly do you envision yourself doing as a sub?

BioAssessments, T&E species surveys, plant id, construction monitoring if I have to...and
wetland delins.
In addition, restoration and mitigation work

What I know so far in my career...there is no ONE thing a consultant does. So it makes it really hard to hone in AND know what is needed to do the job effectively.
So, those are some of the things I can and am willing to do.
Typically yes, I certainly can be charged 3x's! I don't make buckets o'money here!
The things I listed I have experience with. I feel comfortable participating, but not being lead person. But who will write me into a project when the next person has certificates...see what I mean?
My next mission is a meeting with a man/friend that has started his own business in Biology and ask about his liability insurance.
I called our E&O rep. and he's a real bonehead. Not even one iota concerned and didn't listen to my questions.
I really appreciate your attentiveness.
I'm sure you realize by now that I don't know enough to have the right questions, but the more I ask, the more I know...so on and so forth...

Ok. We seem to have moved far from the liability issue...
After speaking with our insurance provider, he swears that we have our ducks in a row with only
E&O insurance: Professional liability, General liability and Pollution liability

I asked him if there was any other type of insurance we might need and he said NO. Just make sure we are also included on the Prime Contractor's Insurance to boot.

So, for all of you working independents or business minded folk...have you experienced taking on more insurance than that for subcontracting jobs?

FYI-
This posting is from a mentor/friend of mine, thought you might like it if I shared. Regards.


"Wetland delineation skills are intertwined with Clean Water Act Section 404 regulations over fill of waters of the U.S. You need to delineate the extent of waters of the U.S. (that includes wetlands), so that you can overlay a project to calculate impacts. The regulations and manual are thick so simply stated “extent of wetlands and wetland impacts for projects” distills it down to the basics. Most importantly, the delineation is ultimately verified by the Corps so once that is done, I would suggest (I am not a lawyer) that your liability is limited. The delineation process is on dominant vegetation and not necessarily every species so while it is technical in nature, it is not exact. You may have 20 plant species growing where only 5 are exerting a controlling influence over the plant community that you make the wetland determination from. I have made determinations at all times of year so you make sure your report and delineation specifies the parameters and limitations if there are any to the delineation. Look at the 1987 manual Problem Area, Normal Conditions, and Abnormal Circumstances where you will find the flexibility in the methodology that allows for some flex.



From my perspective as someone who has built biology practices for three companies, am building my own company, and advanced my career to be a wetlands specialist, the best thing I ever did was get the wetland delineation training. It generates work in doing the delineation, assisting with regulatory permits, being able to review and understand other consultant’s delineations for clients, and so on. I have sent all my staff to get the formal training at the first opportunity because I feel it is that important. It is my opinion that this is a fundamental building block of any biology practice that supports many other opportunities. You go to a site for general reconnaissance or due diligence, once you have the training and developed your wetland eye, you are a much better consultant in providing that information just by looking without even doing a formal delineation."

I've worked in the "environmental" consulting field for a number of years. I've done Phase I environmental site assessments, haz waste assessments, haz waste clean up, wetland delineations, wetland mitigation, wetlands permitting, some veg. inventories, erosion control monitoring, and a number of other things that fall under the very large umbrella of the environmental field.

My two cents: there is probably no greater liability in the environmental profession than Phase I ESAs, and haz. waste assessments/cleanup. Here's why: the typical Phase I ESA goes for somewhere between $1500 and $4000 depending on location, size of site, complexity of surrounding area, etc. Compare that to how much $$$ you'll get sued for if you miss buried drums, underground storage tanks, past haz waste generators, and other items you are likely to miss at least once during the course of your career. Even if you follow all ASTM guidelines and "win" the lawsuit, you're still going to accrue tens of thousands in lawyers fees. So, the risk is very great in comparison to the reward (in this case, fees generated).

On the other hand, if you work on a delineation, permit and mitigation, plus potential NEPA environmental documents, and maybe environmental monitoring, you can generate maybe tens or hundreds of thousands of dollars, depending on size, complexity, etc. And, as Jan points out (and Johnny Stevens disputes), involving the agencies early and often has never been detrimental to a project unless you/your client is trying to get away with something. Getting the agencies involved early in all aspects of a project (wetlands/waters, as well as T&E, SHPO issues, stormwater management, construction schedule/sequencing, etc.) can only be beneficial in obtaining permits and ensuring (not a good work in the loss-prevention world) that lawsuits are avoided. If your client says, "well, if we ask the question we probably won't like the answer; so let's not ask," I would suggest walking away from your client...

In summary, to get back to your initial question, you are much more likely to "miss something" on a Phase I ESA or haz waste assessment than you are in a wetlands/T&E project if you involve the agencies early and often. So, I think liability/risk is much greater in the haz waste assessment, hazmat world.

A bit more than 2 cents, but I feel better having gotten that off my chest....