Guidebook for Designing and Managing Rights-of-Way for Carbon Sequestration and Biomass Generation (2015)

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3 Overview This chapter discusses the management issues likely to confront a DOT embarking on a carbon sequestration or bioenergy feedstock project. Specifically, it discusses some of the objectives of traditional vegetation management programs and how those might inform the development of a carbon sequestration or bioenergy feedstock project. This chapter identifies five topic areas for DOTs to consider when evaluating the feasibility of implementing carbon sequestration and bioenergy feedstock project activities within highway ROWs—motorist safety, asset management, environment, other regulations and policies, and programmatic considerations. While the considerations discussed below are familiar to most DOT staff, they are summarized here for convenience. Motorist Safety The safety of the traveling public is of paramount importance in considering the feasibility of intentionally growing vegetation for carbon sequestration or bioenergy feedstocks. Table 1 summarizes the main motorist safety considerations. Collectively, these safety considerations limit the areas in the highway ROW where potential projects would be appropriate. Project activities that involve tree planting or other tall vegetation are only suitable to areas outside of the clear zone. While lower growing vegetation does not pose a collision or sightline hazard, other potential hazards like wildlife collision and frequent equipment access make growing some crops in the clear zone inappropriate. Clear Zone The clear zone is the area beyond the edge of the travel lane adjacent to the roadway that must remain clear of fixed obstacles that would prevent an errant vehicle from safely stopping or returning to the roadway. The recommended clear zone ranges from seven to 46 feet, depend- ing on design speed and traffic volumes. Fixed objects greater than four inches in diameter are considered a hazard. Where guardrails or other safety barriers are present, larger diameter vegetation may be permissible closer to the roadway (AASHTO, 2011a). Potential project activities that involve tree planting should take place outside of the clear zone. See the AASHTO Roadside Design Guide (AASHTO, 2011a) and state-specific setback standards for more complete guidance. Figure 1 shows an illustration of the roadway cross-section including the clear zone. C H A P T E R 1 Primer on DOT Management Considerations

4 Guidebook for Designing and Managing Rights-of-Way for Carbon Sequestration and Biomass Generation Sight Distance Clear lines of sight allow motorists to see roadway conditions, signs, other motorists, and the shape of the road to navigate safely. There are limits on the placement and maximum allowable height of vegetation at intersections, along horizontal and vertical curves, and near roadway signs. For example, vegetation must be kept below two feet nine inches in height within 10 feet of the travel lane on curves with radii of 6,470 feet or greater (AASHTO, 2011b). Potential project activities that involve tall vegetation should take place a sufficient distance away from the roadway. See the AASHTO Policy on Geometric Design (AASHTO, 2011b) and state-specific design standards for more complete guidance. Issue Standard/Practice Clear zone No vegetation >4 inches in diameter within ~30 feet of edge of roadway. Sight distance Limits on placement and maximum allowable height of vegetation depending on road design: typically less than 3 feet in height in the “operational zone.” Access control Ingress and egress from roadway discouraged: prioritize ROW ingress from adjacent property or service road, access on Interstate requires FHWA approval. Equipment operation in the ROW and work zone safety Traffic control required: Warning signs or equipment-mounted safety lights required for work beyond the shoulder and Warning signs or arrow board as well as channelizing devices to close shoulder for work on the shoulder. Limit equipment operation in the clear zone and highway medians. Limits on the equipment storage and hours of operation. Wildlife collision Maintain vegetation to keep clear sightlines, minimize the nutritional value of vegetation grown in the ROW. Shading and hazard trees Avoid high growing vegetation on southern and western sides of roadway to avoid road shading, prune or remove damaged or diseased trees to prevent falling on roadway. Table 1. Motorist safety. Source: Federal Highway Administration Figure 1. Roadside vegetation management zones.

Primer on DOT Management Considerations 5 Access Control Access to and from the roadway is managed to limit and separate traffic conflict points in order to promote the safe and efficient flow of traffic. In general, access to and from the roadway along limited- and controlled-access facilities is discouraged. In the case of Interstate highways, new or revised access requires approval from the Federal Highway Administration (FHWA) (U.S. Department of Transportation, FHWA, 2010). When considering potential project activities, attention should be paid to the frequency of access from the roadway that would be required. Work Zone Safety The design, installation and use of traffic control devices to warn and guide motorists about and around traffic hazards and to protect workers and equipment is described in FHWA’s Manual on Uniform Traffic Control Devices. Requirements for type of signage and its distance ahead of the work area vary based on the location of the work and prevailing roadway speed. Warning signs or equipment-mounted safety lights are required for work beyond the shoulder. Work on the shoulder requires warning signs or an arrow board, as well as channelizing devices to close the shoulder (U.S. Department of Transportation, FHWA, 2009a). Many states also have supplemental standards that may be more restrictive, including prohi- bitions of the operation of equipment within a certain distance from the edge of the traveled way, limits on the placement of equipment and hours of operation, and prohibitions of causing and blowing dust and debris (Colorado Department of Transportation, 2003; Kansas Department of Transportation, 2010; Michigan Department of Transportation, 2013; Missouri Department of Transportation, 2012; South Dakota Department of Transportation, 2010). See the FHWA Manual on Uniform Traffic Control Devices and state-specific guidelines (e.g., mowing permit requirements) for more complete guidance. Wildlife Collision The presence of trees and other vegetation close to the roadway can increase the incidence of wildlife–vehicle collisions when that vegetation provides either cover or a food source. In general, best practices indicate either the removal of such vegetation up to 130 feet from the edge of the pavement, managing the palatability of the vegetation through selection of unpalatable species, and minimizing forage quality through mechanical or chemical controls—or both (Huijser et al., 2008). See the FHWA Wildlife Vehicle Collision Reduction Study: Best Practice Manual (Huijser et al., 2008) for more complete guidance. Shading and Hazard Trees In some circumstances, trees and other vegetation located outside of the clear zone may pose a safety risk by casting shadows on the roadway that inhibit the melting of snow or ice or by diseased or damaged portions of trees falling onto the roadway. Additionally, vegetation growing too close to the roadway can cause the formation of snowdrifts. If properly placed—upwind from the roadway and up to 250 feet from the centerline—vegetation can serve as a living snow fence (AASHTO, 2011c). See the AASHTO Guidelines for Vegetation Management (AASHTO, 2011c) for more complete guidance.

6 Guidebook for Designing and Managing Rights-of-Way for Carbon Sequestration and Biomass Generation Asset Management Vegetation can impact the integrity of several structural elements of the roadway cross- section, from the roadbed itself to storm water facilities and utility installations. Potential project vegetation must be managed to avoid damage to roadway, utility and other facilities, accumulation of water, and soil erosion. DOTs also need to consider the impact of project vegetation management activities on surrounding vegetation and vice versa. Finally, DOTs should also consider potential future uses of the ROW, including lane expansion or alignment reconfigurations, as this may conflict with the requirements of certain carbon sequestration or bioenergy feedstock project activities that establish long-standing vegetation. Environment The environmental considerations of roadside vegetation management have and will continue to evolve over time. This section discusses three environmental considerations relating to carbon sequestration or bioenergy feedstock generation projects—control of invasive and noxious weeds, storm water and water quality, and genetically modified organisms (GMOs). Control of Invasive and Noxious Weeds Highway and road corridors enable the distribution of plant species beyond the environment in which they evolved. Non-native species that have great potential to spread by replacing native or desirable species in a particular area if not managed immediately are referred to as “invasive.” Invasive species that are injurious to public health, the environment, public roads, crops, livestock, or other property and result in severe economic or ecological harm are designated by a federal, state, or local agency as “noxious.” DOTs have a regulatory responsibility to manage the spread of both invasive and noxious weeds. Management protocols include preventative and eradicative measures. Preventative measures include requirements that equipment operated in the ROW be cleaned before entering and leaving a project site; that imported materials such as mulches, compost, and seed mixtures be certi- fied weed-free to minimize soil disturbances; and that disturbed areas are monitored for weed infestations. Eradicative measures include mechanical and chemical controls including burning, pulling, mowing, and herbicide applications (Venner, 2006). Potential carbon sequestration and bioenergy feedstock projects should proactively address the potential to increase the spread of noxious and invasive weeds and adopt best practice measures to mitigate that risk. See NCHRP Synthesis 363: Control of Invasive Species: A Synthesis of Highway Practice for additional information. Storm Water and Water Quality The impervious surface of roadways interrupts the natural process of storm water infiltration and can lead to the diminishment of water quality in nearby streams and waterways due to storm surges and the channeling of debris, sediment, and residual chemicals. Properly maintained roadside vegetation can mitigate some of these impacts by filtering storm water runoff before it reaches the receiving waters. Notably, the systems of conveyances that carry runoff from the state highways are considered municipal storm sewer systems and are subject to regulations under the federal Clean Water Act. These facilities require a permit that sets constraints on many DOT activities, including vegetation management.

Primer on DOT Management Considerations 7 When considering potential carbon sequestration or bioenergy feedstock projects, care should be taken to understand the potential risks and benefits these projects might pose in terms of moderating or exacerbating storm water runoff. Potential carbon sequestration and bioenergy feedstock projects should adopt best management practices to mitigate potential risks. GMOs While not an issue that typically confronts DOTs, potential carbon sequestration or bioenergy feedstock projects may raise questions about the safety of GMOs. Several biomass feedstocks, including corn, soybeans, and canola, are widely grown using GMO varieties. Though GMOs have been widely adopted and accepted by many agricultural producers in the U.S., many in the public continue to perceive GMOs as unsafe for the environment. In addition to public perception issues, GMOs may present a risk of gene flow of certain traits, including herbicide resistance, to related native or naturalized species, thereby making their control more difficult (Schafer et al., 2011). Potential carbon sequestration and bioenergy feedstock projects should proactively address potential public and environmental concerns. Other Regulations and Policies Allowable Uses of the ROW The use and management of the ROW for Federal-Aid Highways must comply with applicable federal rules and policies. The over-arching purpose of the federal policy framework is to ensure that the safety of the public and the current and future operation of the transportation facility are not impaired by any non-transportation uses of the ROW. Title 23 of the Code of Federal Regulations, Chapter 1, Part 23 (23 CFR § 1.23 “Rights-of-way”), stipulates that ROWs acquired for Federal-Aid projects shall be used exclusively for highway purposes. An exception is provided to this restriction for non-highway purposes where FHWA determines that the non-highway purpose is in the public interest and will not adversely impact the safe flow of traffic. Air Space Leasing The requirements for leasing property interests acquired with federal transportation funding for alternative or non-highway uses are spelled out at 23 CFR § 710. The lease of a property interest in the areas located adjacent to the roadway, as well as the area above and below the roadway, is referred to as an airspace lease. Airspace lease agreements are subject to approval by FHWA, and prior to entering such agreements, the DOT must evaluate the environmental effects of leasing the property under the procedures described at 23 CFR § 771 [23 CFR § 710.403(c)]. Airspace lease agreements must also charge a fair market rent and proceeds must be used for transportation purposes [23 CFR § 710.403(c)]. The requirement to charge fair market rent can be waived if it can be shown that such an exception is in the overall public interest for social, environmental, or economic purposes. FHWA has suggested elsewhere that projects that positively address climate change may be an appropriate activity for this type of exception (AASHTO, 2011c; Hernandez, 2012; U.S. Department of Transportation, FHWA, 2009b). Potential carbon sequestration and bioenergy feedstock projects could be developed using air space leasing and could potentially be allowed to proceed without charging full fair-market rent.

8 Guidebook for Designing and Managing Rights-of-Way for Carbon Sequestration and Biomass Generation Landscape Development Federal rules also prescribe policies related to landscape development within the ROW of Federal-Aid Highways. Landscape development is defined to include both formal landscape projects aimed at enhancing roadside aesthetics as well as “other highway planting programs” (23 CFR § 752.4). These rules require that such activities include the planting of native wildflower seeds or seedlings, unless a waiver is granted by FHWA. A waiver to the native wildflower require- ment can be granted if the planting is used for agricultural purposes [23 CFR § 752.11(b)(3)]. Potential bioenergy feedstock projects in the Federal-Aid ROW would likely receive a waiver to FHWA’s native wildflower requirements since the activity clearly involves an agricultural purpose. It is less clear if potential carbon sequestration would be eligible for such a waiver. Liability DOTs are charged with managing their roadways and attendant properties in a manner that minimizes or eliminates risks to the traveling public. The failure to safely maintain roadsides can expose a DOT to civil lawsuits in the event of an accident that results in personal injury or damage to property. In order to minimize the risk of negligence claims, the DOT must act in accordance with generally accepted vegetation management practices. Particular care should be given to mitigate collision hazards and maintain sightline distances. This obligation extends to DOT contracts with others to maintain or utilize the roadside. At a minimum, DOTs should require permittees or contractors to obtain liability insurance to cover potential damages. Such insurance should include the state as a named insured to offer further protection to the state. The permit or use agreement should also specify other safety requirements. State Regulations States may have a variety of laws or rules that could impact the use of the ROW for anything other than purely highway purposes, even if those laws and rules were created without specific uses in mind. For example, although not likely intended to prevent growing and harvesting bioenergy feedstocks on ROWs, Iowa and Minnesota limit the dates of mowing in the ROW. Such dates may not be consistent with those desirable for bioenergy feedstock establishment, maintenance, and harvest. A thorough examination of specific state laws and rules will be required on a state-by-state basis for DOTs pursuing value extraction of roadside ROW. The examination should include land-use or zoning laws and rules as well. Also, states may have restrictions or dedications on use of highway or transportation funds. There are federal requirements that dictate the use of any revenues derived from the ROW where federal funds were involved in the purchase. Similarly, state restrictions or dedications would likely apply to revenues received if dedicated funds were involved in the purchase of the ROW, as that would likely make the ROW an asset of a restricted or dedicated fund. Programmatic Considerations Internal and External Stakeholders Evaluating, planning, and implementing carbon sequestration or bioenergy feedstock projects are complex and highly technical tasks and most agencies are unlikely to possess all the expertise necessary to bring a project to fruition. As a result, a DOT will likely need to engage and seek the advice of outside experts. Depending on the type of project pursued, some of the partners that

Primer on DOT Management Considerations 9 might be engaged include: university agronomists and soil scientists, professional foresters and restoration experts, carbon offset developers and brokers, and economists. These experts may be found in other state and federal agencies or in the private sector. As potential projects become more developed, it also prudent to perform a context-sensitive evaluation that engages local stakeholders and inventories potential issues and concerns. Utilizing such an approach helps ensure that a project fits its location and provides the opportunity to identify and resolve potential conflicts early on, thereby avoiding costly delays. The list of audiences to engage should include adjacent property owners, impacted transportation users, local and regional officials, local businesses, and civic and environmental interest groups. Business Model There are three basic pathways a DOT might utilize to facilitate the use of the ROW to grow biomass for carbon sequestration or bioenergy feedstock purposes. Each approach has its advan- tages and disadvantages, as shown in Table 2. Self-service model—DOTs could develop and structure a program to intentionally plant, grow, harvest, and market the carbon offsets or bioenergy feedstock in the ROW. Contract for service model—the DOT would contract with a private party to grow, harvest, and market the carbon offsets or bioenergy feedstocks. The private party would provide all necessary labor, equipment, and material inputs, while the DOT would make the land available at no cost. Private entity leasing model—the DOT would enter into an airspace lease with a private entity that would then use the leased land to generate carbon offsets or grow and harvest a bioenergy feedstock. The private party would provide the necessary labor, equipment, and material inputs. This model would require a permit from the DOT to delineate the specific details and any requirements of use. Type Advantages Disadvantages Self-service model Familiarity with the planting and managing of vegetation in the ROW. Do not need formal FHWA approval to change the management regime. Lack of the agronomic or other expertise necessary to implement a particular production system or find suitable markets for harvested materials or carbon offsets. Lack of the necessary equipment to establish, maintain, and harvest vegetation or crops. The private sector might balk at the prospect of a DOT directly engaging in such an enterprise. Contract for service model DOT could rely on the expertise of qualified bidders for the establishment, harvest, and marketing of the agricultural crop. Avoid federal restrictions on accessing the ROW from the established grade of the highway. DOT would not have direct control over the implementation of a particular production system. Private entity leasing model Relies on a proven pathway for developing non-highway uses of the ROW. Many DOTs have established procedures for developing and executing ROW property leases for other non-highway uses. Relies on the expertise and resources of the private entity. The process for awarding lease agreements can be cumbersome and carries with it other restrictions that make it difficult to implement a project. Federal rules prohibit airspace agreements from allowing access to the leased land adjacent to the Interstate directly from the roadway. The restriction on accessing ROWs from Interstate highways may make leasing for growing biomass impractical. Table 2. Business model pathways.