An Ecological Approach to Integrating Conservation and Highway Planning, Volume 1 (2013)

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17 C h a p t e r 4 This chapter summarizes the solutions responding to the incentives of and barriers to an ecosystem approach that were identified through surveys and interviews. These solutions are followed by the essential features of any ecosystem approach and a description of the IEF. Methods to provide assurance are addressed separately in Chapter 5. Solutions Identified through Surveys and Interviews Identify Priority Conservation Areas and Make Data Available Respondents noted that regional and nationwide geospatial data would assist in addressing many cross-scale questions and produce wide-ranging benefits. Geospatial data can assist transportation specialists in understanding the ecological implications of an individual transportation project. They can also be used by planners to understand the broader, cumulative impacts of a larger regional or statewide transportation system on the natural and human environment. An increased under- standing of ecological relationships and the implications of those ecological relationships can support transportation designs that will minimize impacts on the environment and reduce mitigation costs and project delivery delays. Because individual environmental elements are influenced by regional or even global ecological processes, data that provide a larger regional or national context may make it easier to understand how different transportation projects or systems can affect those ecological relationships and pathways that may intersect the project planning area. Respondents recommended the identification of priority conservation areas (uplands, wetlands, vegetation communi- ties), species ranges, and wildlife connectivity by using advanced geographic information system (GIS) and ground truthing. One idea was the creation of an accessible, easy-to-use database showing listed species’ ranges, a bibliography of studies done on listed species, and suggested methods to avoid or minimize impacts based on project type. It is also important to make these data available to decision makers early in the process. Interview- ees pointed out that if resource agencies share the data they use to make decisions, transportation agencies and local govern- ments will come up with better, more appropriate plans and projects from the start. Other solutions mentioned in this category included the following: • Identify areas of overlap between state wildlife action plan conservation priorities and areas that support or may be capable of supporting federally listed species. • Provide greater specificity as to location of priority resources (habitats, wetlands) and provide information on restoration. • Define ecoregion priorities that have buy-in from regulatory agencies. • Use Natural Heritage Program (NHP) and mapped state wildlife action plan data. • Conduct GIS environmental analysis of the long-range transportation plan, MPO plan, or state transportation improvement program. Modify the Current Planning Approach Agencies frequently mentioned solutions that focus on where investments will generate the most environmental benefit. Numerous agencies and individuals spoke of the need for planning-level analysis, linkage to later environmental pro- cesses, and programmatic approaches in general. Improve Coordination Between and Within Agencies Respondents mentioned a need for a variety of annual, quar- terly, and monthly meetings between transportation and resource agencies. Several agencies spoke of the need to take Solutions

18 time to educate each other on their needs and processes. Agencies also emphasized the importance of trust between agencies. Multiple agencies recommended consultation with agen- cies responsible for land use management, natural resources, environmental protection, conservation, and historic pres- ervation during development of long-range transportation plans and leveraging the interrelationships between improv- ing energy efficiency, reducing greenhouse gases, increasing accessibility, and addressing natural resource priorities. Major concurrent work by other infrastructure sectors could drive these partnerships. It was also noted that formal frameworks for these relationships would be helpful. Several respondents spoke about needed or helpful changes in internal coordination and support. For example, Caltrans created a structured process of briefing agency heads first so they could speak in an informed fashion at their conservation and infrastructure workshop and provide initial leadership to their own staffs, with midlevel managers meeting later to expand and articulate plans and goals. Likewise, in North Caro- lina, Florida, and Colorado, agency leaders or high-ranking offi- cials provided key leadership by signing off on the programmatic, ecosystem-based approach before other levels worked out the details. Empowering or incentivizing staff to come to solutions at the field level is another key to success. For example, resource agency representatives participate in environmental technical assistance teams in each Florida DOT region and have the authority and responsibility to evaluate projects and coordinate internally, fully representing their agencies’ positions. Florida DOT assisted by providing funding. Having a clear elevation process so troublesome issues can be passed up the chain of command and frontline staff can maintain for- ward momentum on everything else was also recommended. Modification of current roles and responsibilities was seen as a solution. One DOT noted the helpfulness and importance of speaking with frontline staff members about how their jobs and responsibilities would change under the new approach. Oregon’s follow-up study on the Oregon Bridges streamlining program noted that internal support was somewhat deficient and that more outreach, such as “sound bites” that succinctly capture program benefits, could have mitigated that problem. Improve Integration of Transportation and Land Use Planning Integrated planning, specifically integrated transportation and land use planning, was mentioned frequently as a solu- tion. Land use planning was mentioned as the key to man- aging growth—that is, without strong land use planning, transportation projects serve the demand that has already exceeded the capacity of the transportation system. Land use plans and growth models also provide a good foundation for identifying potential cumulative impacts on ecological fea- tures and possible mitigation opportunities. Land use plan- ning can also be incorporated into the strategies for natural resource protection. Provide Resources to Execute an Ecosystem Approach Providing needed time, staff, funds, and training resources to execute the Eco-Logical approach (Brown 2006) was a common suggestion, especially among DOTs, MPOs, and FHWA. The need for additional, dedicated funding and the ability to use that funding for upfront costs were mentioned most. MPOs particularly mentioned the need for funding to do integrated planning. Additional staff or environmental staff were men- tioned by seven respondents. Four DOTs wanted additional liaisons in resource agencies. A few DOTs indicated the need to use the expertise of NGOs, including training on the data and tools they provide. Notably, only one federal resource agency respondent mentioned additional staff time, training, or dedi- cated funding as a solution, although the need for a solution in this area is implied by the barriers mentioned. Demonstrate Benefits and Examples, Report Results, and Develop Formal Agreements State DOTs and FHWA saw a great need to demonstrate eco- logical and project-related benefits and/or provide examples of ecosystem-based approaches. To a lesser extent, NGOs and MPOs also suggested this solution. Resource agencies did not mention this as a solution, probably because many agencies are already aware of the benefits of ecosystem-based approaches. Most frequently mentioned in this category was the need for examples of success, preferably demonstration projects in indi- vidual states. Several states mentioned the need for examples of the benefits of these approaches in terms of reduced time for project approval, cost savings, and better ecological results. Three DOT and FHWA respondents saw the need for a good business case to demonstrate how and why early investments in mitigation will pay off in the long run. Twenty-one respon- dents suggested developing formal agreements to support ecosystem-based approaches. Of these, the highest number advocated creating a specific legal document (a memorandum of agreement [MOA]) between agencies to provide assurances that advance mitigation will count. Assurance methods are addressed further in Chapter 5. Recording and reporting results and/or evaluating perfor- mance were mentioned as a solution by 10 DOT respondents, as well as multiple FHWA, MPO, and local government respon- dents. MPOs and local governments mentioned requirements for consultants to provide semiannual updates of environmen- tal impacts, a long-range transportation plan policy framework

19 that includes performance measures related to the environ- ment, and a project measuring how the region is attaining the goals of the long-range plan. essential Features of an ecosystem approach and the IeF The barriers, incentives, and solutions identified through sur- veys and interviews conducted for this effort and supported by background research indicate that any ecosystem approach has certain essential features. These essential features are presented in the first part of this section, followed by a description of the IEF. Essential Features of an Ecosystem Approach Adheres to Federal Legislation Ecosystem-based mitigation is an approach to long-term con- servation similar to those approaches already encouraged in laws and regulations. The last two federal transportation acts have included provisions that explicitly encourage the use of mitigation banks as a way to compensate for impacts on aquatic resources associated with federal aid highway projects. Happens from Outgrowth of Integrated Planning In an ecosystem-based mitigation system, the process of inte- grating transportation and ecological planning will produce a hierarchy of important resources in a region and their locations. A multiagency steering group can guide the development of a regional mitigation plan and establish a system of accountabil- ity and how it will be measured. Logically, decisions to provide mitigation in the most ecologically important locations should lead to an environmentally preferable result if the mitigation occurs and is successful. Accordingly, the service areas for multi- resource banks may differ from those of wetland mitigation banks and species and habitat conservation banks. Depend- ing on the nature of the ecosystem mitigation proposal, the range of impacts for which it provides mitigation may be larger or smaller than the service areas of mitigation and conservation banks in the same region, and the impacts may be defined with reference to ecological areas and resources identified during integrated planning. Ultimately, the service area of an ecosystem bank will need approval from CWA and ESA regulators if it is used to offset impacts authorized under these statutes. Uses Maps of Conservation Priority Areas Many states have developed geospatially mapped conserva- tion priority areas as part of their state wildlife action plan- ning efforts. In states where these are not available, The Nature Conservancy maintains ecoregional conservation plans with identified conservation priorities based on factors determined by the state natural heritage programs, university researchers, and state and federal resource agency staff. Focuses on Ecosystem-Level Priorities Information is often available on the historic range of species and habitats relative to what is left today. Ecosystem-level eco- logical priorities determined as a “desired future condition” may include the protection of specific species, community types, or landscape functions such as habitat connectivity, productivity, or yield. The Wildlife Society’s Performance Measures for Ecosys- tem Management and Ecological Sustainability provides a start- ing point for evaluating specific structures, functions, and processes that can be used to assess ecosystem health and overall condition (Haufler et al. 2002). Addresses Vanishing Opportunities Both DOT and resource agency environmental professionals have been faced with opportunities for which timely action could yield outstanding ecological benefits and delay could lead to a potentially permanent loss of the opportunity. These cir- cumstances are becoming increasingly common. Ecosystem- based mitigation is well oriented to take advantage of these vanishing opportunities before they are lost. The interagency Eco-Logical guidance (Brown 2006) takes seriously the threats to existing high-quality conservation lands and recognizes that joint conservation action is often the only way to prevent destruction or degradation of such lands. Considers Net Benefits Quantification of resource values could facilitate equitable or improved comparison between proposed ecological restoration activities and the impacts on those values by a proposed project. In addition to serving as an important proponent in developing and using conservation banks, USFWS set a precedent for eval- uating net benefits in a 2003 guidance memorandum for ESA Section 7 consultations with the U.S. Forest Service regarding hazardous fuel treatment projects. The memorandum advo- cates adoption of a long-term view when consulting on projects under Section 7 and acknowledgement that some projects may have short-term adverse effects on some listed species. At the same time, the memorandum states Projects with expected net benefits that outweigh short- term adverse effects should be expedited in the interest of the conservation or restoration of native ecosystems and the spe- cies that inhabit them. The jeopardy analysis for the Section 7

20 consultation should take into account whether the short-term adverse impacts to the individuals are outweighed by the long- term conservation benefits to the species as a whole. (U.S. Fish and Wildlife Service 2002) FHWA, the Oregon DOT, and USFWS describe this net benefits approach in their comprehensive mitigation and con- servation strategy (CMCS). The CMCS integrates wetlands mitigation with habitat conservation and allows impacts to be evaluated at the ecosystem level, with a single accounting sys- tem for assigning mitigation credit and debit across all agen- cies. It establishes a program-level mitigation and conservation approach along with specific conservation and mitigation banks that serve regional ecological priorities: Habitat management areas and actions will be designed to achieve a meaningful net conservation benefit. Actions should be designed and the overall CMCS program should be imple- mented so that on-ground benefits to species/resources at the program scale provide greater ecological benefit than typical on-site mitigation efforts. This additional value will come from focusing not only on compensatory mitigation, but also by pro- viding additional benefits in support of species recovery and conservation goals. (Oregon Department of Transportation et al. 2005) Uses Multiresource Habitat-Based Approaches Instead of looking at wetland mitigation and species mitigation as separate activities, ecosystem-based mitigation agreements look at these and other resource functions of the ecosystem holistically and look for synergistic opportunities, thus adding value to these systems. By encompassing wetland and upland habitat into a complete mosaic, strategically located within a landscape and/or watershed, ecosystem-based mitigation enables the protection of ecological functions, values, and processes that are believed to be most important for the regional ecosystem. Habitats and vegetation communities are linking mechanisms. Case law establishes well that the ESA is concerned with two variables in the context of spe- cies preservation: the number of species and the amount of species habitat. Under 16 U.S.C. Sec. 1536(a)(2), the test for whether a habitat proxy is permissible is whether it “reasonably ensures” that the proxy results mirror reality (Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 378 F.3d 1059 [9th Cir. 2004]). In the latter, the judge noted that “as 16 U.S.C. §1531 et seq., does not prescribe how the jeopardy prong is to be determined, nor how species populations are to be estimated, it is a permissible interpretation of the statute to rest the jeopardy analysis on a habitat proxy.” Likewise, USFWS has argued that predicting species jeopardy based on habitat degradation is within the realm of agency discretion, is scientifically sound, and has been approved by this court in other contexts. An agency’s scientific methodology is owed substantial deference (United States v. Alpine Land and Reser- voir Co., 887 F.2d 207, 213 [9th Cir. 1989]), and in the context of deference to scientific methodology, the holding of Inland Empire Pub. Lands Council v. United States Forest Service, 88 F.3d 754, 761 (9th Cir. 1996), is appropriate, including defer- ence to the agency’s expertise in allowing this “proxy on proxy” approach. The principle of allowing an agency to use proxy modeling to evaluate species population so long as that proxy has a high correlation with the relevant species’ population is . . . appli- cable in the ESA context. The test for whether the habitat proxy is permissible in this case is whether it “reasonably ensures” that the proxy results mirror reality. See Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 972-73 (9th Cir. 2002) (hold- ing that deference to proxy on proxy approaches is not war- ranted when the proxy method does not “reasonably ensure” accurate results); Ariz. Cattle Growers’, 273 F.3d at 1250 (“The use of ecological conditions as a surrogate for defining the amount or extent of incidental take is reasonable so long as these conditions are linked to the take of a protected species”) (Federal Highway Administration 2005). In the Pinchot case the court found that the habitat analysis was not a simplistic “x acres = y species individuals” but was strengthened by taking into account the type of land, extent of degradation of the habitat, relationship between different hab- itats, the species’ distribution, and the species’ range. The jeop- ardy analysis also takes into account nonhabitat factors, including competition from other species and disease. “This detailed model for owl population is sufficient to ensure that the USFWS’ habitat proxy reasonably correlates to the actual population of owls. . . . Bearing in mind the deference owed the USFWS’ scientific judgment, Alpine Land, 887 F.2d at 213, we cannot say that use of a habitat proxy was impermissible. . . . Focus on actual species count is an overly narrow interpreta- tion of what is required under the jeopardy prong. . . . Because the ESA does not prescribe how the jeopardy prong is to be determined, nor how species populations are to be estimated, we hold that it is a permissible interpretation of the statute to rest the jeopardy analysis on a habitat proxy” (Federal Highway Administration 2005). The court ruled that “[f]urther, if habi- tat models are sufficiently accurate and are robust, in the sense that the results are accurate in many cases, then the models function as if the USFWS were counting species indi- viduals,” accomplishing the same function (Federal Highway Administration 2005). In NWF v. Babbitt, the Ninth Circuit court upheld a habitat- based approach, saying that counting species individuals was not required. The court rejected the plaintiff ’s arguments that

21 the Plan was obliged to “estimate the number of individual members of a species within the Permit area” and “then esti- mate the number of members of the species that will be taken,” saying there is “no authority for this interpretation of the ESA.” Builds on Existing Effectively Conserved Areas For at-risk species and ecological communities, effective conservation occurs when, given current conditions, bio- diversity is expected to persist as a result of conservation actions. Effective conservation is a measure of three catego- ries: biodiversity status, future threat status, and protection and land management status. Scientists generally agree that retention of functional core areas is an essential conserva- tion strategy, whether they are harbors for affected species, receivers of species needing to move, or systems in which species can adapt. Functional core areas must be sufficiently connected to receive and export species. Barrier-free disper- sal corridors (i.e., wildlife movement corridors, which are often the areas wildlife use to move from one habitat area to another) are important for many species, especially with increasing temperatures and climate change. A species or type of community may be considered effec- tively conserved when a sufficient number or distribution of a conservation target are under effective conservation; that is, when all three categories of effective conservation can be evalu- ated as “good” or “very good.” The Colorado NHP and other NHPs have shown how this can be illustrated on a scorecard for each state and by ecoregion as roll-up measures from individual species and communities. The effect of a conservation and/or mitigation area is effectively leveraged and its value increased when existing effectively conserved areas are linked where they were not before, or at least when larger patches become available through locating newly conserved areas adjacent to already conserved areas. This practice also effectively reduces the risk of isolation or land use change on the sides that are merged. Uses Transportation Funds for Advance Mitigation and to Support Priorities The ability to use transportation funding for advance mitiga- tion of habitat and wetlands has been continually clarified for more than a decade. On March 10, 2005, FHWA reiterated information on federal aid eligibility of wetland and natural habitat mitigation, specifically emphasizing that “wetland and natural habitat mitigation measures, such as wetland and habitat banks or statewide and regional conservation mea- sures, are eligible for federal aid participation when they are undertaken to create mitigation resources for future trans- portation projects.” These activities are eligible for funding “either concurrent with or in advance of the construction of highway or other transportation projects funded under Title 23, or even in advance of completion of project level environ- mental reviews” (emphasis retained) under 23 Code of Federal Regulations (CFR) Part 710.513 and 23 CFR Part 777, using either National Highway System or Surface Transportation Program federal aid funds (Federal Highway Administration 2005). The Transportation Equity Act for the 21st Century (TEA-21); the Safe, Accountable, Flexible, Efficient Transpor- tation Equity Act: A Legacy for Users (SAFETEA-LU); and implementing regulations provide other important infor- mation on the flexibility of FHWA to participate in various aspects of mitigation for wetlands and natural habitat. In addition to the ability of DOTs to fund mitigation separately from transportation projects, mitigation planning, design, construction, monitoring, establishment, and acquisition of land or “interests therein” are all eligible for funding (23 CFR Sec. 777.5). Furthermore, funding for long-term maintenance can and should be included with investments in mitigation or conservation banks or an in lieu fee (ILF) program (see Chap- ter 5). DOTs may also acquire lands in cooperation with other parties and may transfer lands to an appropriate resource management agency or third party, providing for “the contin- ued use of the lands for the purpose for which they were acquired” (23 CFR Sec. 777.11[d]). FHWA’s legal sideboards for this flexibility specify that impacts must result from a fed- eral aid project in order to qualify for federal funds and must be considered a “reasonable public expenditure.” DOTs also generally avoid acquiring advance mitigation lands by emi- nent domain and must comply with federal law and state transportation planning processes. Integrated Ecological Framework As described in Chapter 1, this project was conducted in close cooperation with a related SHRP 2 effort (described in Vol- ume 2 of this three-report series). The primary product of these complementary efforts is the Integrated Ecological Framework (IEF). The IEF is a step-by-step process guiding the integration of transportation and ecological planning. It was developed to respond to the barriers and incentives described in Chapter 3, and it encompasses the essential features of an ecosystem approach described in the previous section. The IEF is available through Transportation for Communities— Advancing Projects through Partnerships (TCAPP) at trans portationforcommunities.com. It is also described in detail in volume 2 of this report and in the Practitioner’s Guide. The nine steps of the IEF are shown in Figure 4.1. The six critical needs that the IEF can answer are listed in a sidebar in the November–December 2013 issue of TR News, p. 25.

22 Figure 4.1. Steps of the Integrated Ecological Framework. The Steps of the IEF Step 1: Build a strong collaborative partnership of transportation and natural resource specialists. Create a shared vision representing the environmental and transportation goals for the planning region. Develop the collaborative framework necessary for cooperative decision making, data development and management, analyses, planning, and implementation. Step 2: Gather data, expertise, and other inputs about the natural and built environment. Represent all high priority conservation and restoration areas and goals (regional ecosystem framework [REF]). Represent an initial plan to meet transportation goals. Step 3: Integrate the conservation and transportation information and goals into a regional ecosystem and infrastructure development framework (REIDF). Step 4: Characterize scenarios of transportation and other land use. Assess the effects of transportation scenarios on conservation objectives, create a preferred scenario, and create an ecosystem-based mitigation strategy to address remaining impacts. Steps 5–8: Carry out innovative, ecosystem-based crediting strategies, interagency agreements, mitigation plans, programmatic consultations, and permitting to support transportation plans and conservation objectives. Step 9: Continue to develop and maintain dynamic information on environmental and transportation needs and goals, access to cutting-edge conservation and assessment methods, and mitigation monitoring results in order to support both a viable partnership vision and future planning at the local, watershed, ecoregional, or state level.