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

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23 C h a p t e r 5 The assurance needs of resource agencies and transporta- tion agencies as they relate to ecosystem approaches were summarized under Assurance Needs in Chapter 3. Many of these needs relate to advance mitigation. The goal of mitiga- tion is to restore, create, enhance, and/or preserve natural resources for the purpose of compensating for unavoidable resource impacts. Mitigation ensures that ecosystems, habitats, and species populations remain sustainable and productive over time. Council on Environmental Quality regulations (40 CFR 1508.20) define mitigation as • Avoiding an impact altogether by not taking a certain action or parts of an action. • Minimizing impacts by limiting the degree or magnitude of the action and its implementation. • Rectifying the impact by repairing, rehabilitating, or restoring the affected environment. • Reducing the impact over time by preservation and main- tenance operations during the life of the action. • Compensating for the impact by replacing or providing substitute resources or environments. Existing methods to provide assurances that collective, off-site, or advance mitigations are credited to transporta- tion agencies are inventoried in this section. The inventory is organized by first addressing regulatory assurance methods, including (1) assurance methods that satisfy the mitigation requirements of both the Clean Water Act (CWA) and Endangered Species Act (ESA), (2) assurance mechanisms used to address the CWA, and (3) mechanisms that address the ESA. Table 5.1, which summarizes the inventory of regulatory assurances, is provided as a guide to help point readers to methods suited to their particular needs. programmatic agreements for Multiple-purpose Mitigation Overview Programmatic agreements address multiple projects and can address multiple regulations (i.e., CWA and ESA) and multiple resources. In this, they are distinguished from project-level approaches. Programmatic agreements are tools for achieving ecological benefit across wide scales (watersheds and ecoregions) and geographic areas. Some states have developed programmatic agreements to guide and formalize negotiations related to satisfying ESA Section 7 and CWA Section 404. Examples include the Colorado DOT Shortgrass Prairie Initiative Memorandum of Agreement, which records early agreements on the assessment (GIS and expert consultation, habitat based) and mitigation approach (existing network plus bridges), projects to be covered (all construction and maintenance activities for 20 years), species to be covered (36 listed and unlisted species), and reopening contingencies (Colorado Department of Transpor- tation et al. 2001). The following tools are available to help agencies develop programmatic agreements: • Programmatic Agreement Toolkit for state departments of transportation environmental projects and programs: To assist state DOTs in their environmental streamlining, the American Association of State Highway and Transportation Officials’ (AASHTO) Center for Environmental Excellence created this toolkit on developing programmatic agree- ments. The toolkit presents information, guidance, and recommendations on developing and implementing pro- grammatic agreements among state DOTs, FHWA, and agencies responsible for the protection of environmental Inventory of Assurance Methods (text continues on page 28)

24Table 5.1. Essential Features and Limitations of Mechanisms for Regulatory Assurances Regulatory Tool Description Assurances Provided Advantages Disadvantages Page Number in Report Clean Water Act Section 404 Assurances Wetland banking Either a DOT or a third party establishes an area of con- structed, restored, or pre- served wetlands and negotiates agreement with resource agency regarding the number of credits that can be sold to applicants requiring wetland mitiga- tion. Applicants pay for credits, applying them to the mitigation requirements for their projects. Most mitigation is completed in advance of the application for a permit, though limited credits may be available before the first year of moni- toring. Functional wetland replacement can be required, with no time lag between the impact and replacement. Bonds or other financial assurances help make certain a condition is achieved. National Academy and other major studies generally show better performance for consolidated mitigation, such as ILF and banking, over individual on-site, activity- specific compensatory mitigation projects. Multiple resource issues may be addressed and provide mitigation credits for these issues per legal requirements. Purchasing credits potentially minimizes expenses involved in site selection, purchase, development, monitoring, and long-term maintenance. Banks must be up and approved before credits are assigned, as only limited credits of total bank mitigation credits may be available before first-year monitoring if certain stipulations are met. Service areas for mitigation banks may not overlap project impact areas. Restored or created wetlands must be sited to contribute to identified watershed needs and priorities, not just where some environmental benefit may occur or where profit can be maximized. 30 In lieu fee (ILF) programs Third party establishes an area of restored or pre- served wetlands and nego- tiates agreement with resource agency regarding the number of credits that can be sold to applicants requiring wetland mitiga- tion. The purchaser of ILF credits provides payment for mitigation to a sponsor for a mitigation project. The purchaser’s credits are applied to the mitigation requirements for their projects. Required to perform the miti- gation within a certain time period after the permit is issued. Functional wetland replacement exists. Bonds or other financial assurances help make certain function is provided. National Academy and other major studies generally show better performance for consolidated mitigation versus individual activity-specific compensatory mitigation projects. ILF investments tend to be targeted to watershed priorities identified by the state agency or conservation group; involve larger, more ecologically valuable parcels; and have more rigorous, scientific, and technical analysis compared with individual activity-specific mitigation projects. Multiple resource issues may be addressed and provide mitigation credits for these issues per legal requirements. By paying into the ILF program, DOTs have the potential to minimize expenses involved in site selection, purchase, development, monitoring, and long-term maintenance. Protected areas must be up and approved before credits are assigned. Service areas for mitigation may not overlap project impact areas. Accountability has been problematic for some ILF programs. 32 Nationwide permit (NWP) Most common general permit issued by USACE. Issued for specific activities that USACE has determined result in minor impacts on aquatic systems. Designing a project such that it qualifies for an NWP dem- onstrates substantial avoid- ance and minimization. Resource agencies are generally assured that avoidance and minimization have occurred, and impacts are minimal. DOTs benefit through increased predictability (NWPs are granted if certain requirements are met and sometimes written concur- rence is not necessary). NWPs have much faster review times; there is a 45-day review period once USACE receives a completed preconstruction notification. Especially useful with programmatic agree- ments for Section 106 or ESA consultation. Projects must be designed to meet specific permit requirements and 401 requirements. National requirements exist, and many USACE districts have added district, regional, or state conditions. Limited to specific project activities. 35 (continued on next page)

25 Regional general permit (RGP) Permits issued to cover activities within a limited geographic area. Designing a project such that it qualifies for an RGP demonstrates substantial avoidance and minimization. Resource agencies are generally assured that avoidance and minimization have occurred, and impacts are minimal. DOTs benefit through increased predictability (RGPs are granted if certain requirements are met and written concurrence is not necessary) and faster review times. Can be very effective with programmatic agreements for ESA consultation. Projects must be designed to meet specific permit requirements and 401 requirements. Requirements differ by USACE district and state. Limited to specific geographic areas. 35 Special area management plan (SAMP) SAMPs are USACE’s main vehicle for taking a water- shed approach and stream- lining permitting on a watershed basis. USACE undertakes a com pre- hensive review of aquatic resources in an entire water- shed to achieve a balance between aquatic resource protection and reasonable economic development and infrastructure. Assures comprehensive eval- uation of aquatic resources and potential development impacts in a geographic area to identify priority areas for preservation, identify potential restoration areas, and determine the least environmentally damaging locations for proposed projects. SAMPs produce abbreviated permitting procedures and assure Waters of United States are preserved in the right places. Sensitive (high-quality) areas and potential areas for development (lower-quality areas) are identified upfront. Potential mitigation areas are identified in advance of projects. Early identification of potential restoration sites eliminates need for DOT site evaluation and selection. Produces efficiencies for permittees with much faster processing times and greater clarity about regulatory expectations. Useful in especially sensitive environments under intense development pressure. Although SAMPs lay out critical resources, potential development sites, and potential compensatory mitigation areas, they are not super permits. However, RGPs may be designed around the SAMP to help implement it. SAMPs can be time consuming to complete, but produce time savings once developed. 35 Advance identification of aquatic resources (ADID) Wetland sites providing the highest functions and over- all quality are identified. By identifying highest-quality wetland resources in advance, increased avoid- ance is strongly encouraged. A permitting component is not included, so 404 applicants have no increased assurance with use of ADID. Helps both DOTs and regulatory agencies reduce conflict situations by communicating in advance about what areas are most valuable and where complete protection is expected. Also assures highest-quality wetland resources are identified in advance. Requires expenditure of resources upfront and can be time consuming to complete the evaluations. Mechanism has only been used in a handful of geographic areas and has been super- seded by other mechanisms. Actions in high-quality sites are likely to be highly scrutinized. 38 Watershed resources registries (WRRs) States or other government agencies establish a list of potential restoration sites within a watershed (often aquatic/wetland but could be terrestrial as well). Provides some assurance or indication that resource agencies would value restoration of the site. Early identification of potential restoration sites eliminates the need for DOT site evaluation and selection. Sites should be selected to meet specific needs of the watersheds. Can be an important tool for siting potential mitigation areas. Registries may only indicate willingness and may not include technical evaluation of the site. Timing for DOT participation may be problem- atic due to land costs and potential bidding war between DOTs and bankers. 38 Table 5.1. Essential Features and Limitations of Mechanisms for Regulatory Assurances (continued) Regulatory Tool Description Assurances Provided Advantages Disadvantages Page Number in Report (continued on next page)

26 Table 5.1. Essential Features and Limitations of Mechanisms for Regulatory Assurances (continued) Regulatory Tool Description Assurances Provided Advantages Disadvantages Page Number in Report Endangered Species Act Section 7 Assurances Standard ESA Section 7 consultation Informal or formal consulta- tion between the federal project lead agency (FHWA) and USFWS or NOAA Fisheries. Provides FHWA with the assurance that listed spe- cies and their habitats are not jeopardized and critical habitat is not destroyed or adversely modified. Thorough, documented assessment of potential impacts on listed species. Consultation frequently results in suggestions for mitigation efforts, including redesign, relocation, and compensatory mitigation. 41 Programmatic ESA Section 7 consultation Programmatic consultations evaluate the potential for federal agency programs to affect listed species and designated critical habitat. They address species, hab- itat, or project needs on a multiple-project scale, often addressing ecosystems as well as individual species. Provides FHWA with the assurance that listed spe- cies and their habitats are not jeopardized and critical habitat is not destroyed or adversely modified. FHWA and DOTs receive certainty regarding what actions will be required to comply with Section 7. Better and more cost-effective integration of ecosystem and recovery planning activities with Section 7 consultation; streamlined consultation processes; added predictabil- ity for all parties; minimization of the poten- tial piecemeal effects that can occur when evaluating individual projects out of the context of the complete agency program; and the opportunity to integrate the action agency’s 7(a)(1) responsibilities at the program level. Uncertainty regarding specific future projects and the future status of species. The Ser- vices must provide the benefit of the doubt to the species and use best available scientific information. Depending on the complexity of the program to be covered, developing programmatic agreement and accompanying BA and BO could take 1–3 years; however, review times for covered projects are shortened. 41 Conservation banks Land parcel containing natural resource values restored, conserved, and managed in perpetuity for listed spe- cies; used to offset impacts occurring elsewhere on the same resource values. Permitted banks have been determined by the USFWS to be an effective conserva- tion strategy for offsetting adverse effects of proposed projects on listed species. Credits sold are considered part of the envi- ronmental baseline. Saves time and money by identifying preap- proved conservation areas and simplifying the regulatory process. Reduces piecemeal approach to conserva- tion efforts. May be used to satisfy state-listed species requirements. Appropriate for species where habitat loss is a factor (i.e., the vast majority of species). Not appropriate for all impacts or all projects. Potential lack of private banks in areas where mitigation is most needed. Establishing DOT-specific banks takes time and is expensive, although partnerships can make this much more practical. 45 (continued on next page)

27 Recovery credits A specific program estab- lished to implement recov- ery actions on nonfederal lands for specific species while creating a bank of credits for a federal agency to use to offset the effects of its actions. Recovery credits require a net benefit to the recovery of a species. Better and more cost-effective contributions to recovery through agency activities, more exact analysis, and increased predictability for all parties. Only conservation that occurs on nonfederal lands can be counted for recovery credits. Actions taken under a recovery credit sys- tem are still subject to Section 7 consulta- tion. Some listed species may not be appropriate for inclusion in a credit system. Private landowner anonymity can be a drawback if issues arise with activity on or adjacent to the easements because there is no landowner to contact when in need of a resolution. 49 Habitat conservation plans (HCPs) Planning documents required as part of an application for an incidental take permit under Section 10(a)(1)(b) of the ESA. They describe the anticipated effects of the proposed taking, how those effects will be minimized and mitigated, and how the HCP is to be funded. The Services will honor assur- ances as long as the per- mittee is implementing the terms and conditions of the HCP, permit, and other associated documents in good faith. HCPs can apply to both listed and nonlisted species, including candidate species. Con- serving species before they are listed can provide early benefits and prevent the need for listing. In addition to substantial predict- ability, HCPs provide for those operating under their auspices. The incidental take permit allows the permit holder to legally proceed with an activity that would other- wise result in the unlawful take of a listed species. For private landowners only, without a federal nexus, although NiSource, the Federal Energy Regulatory Commission, and USFWS have illustrated that HCPs can be used where a federal nexus is involved. HCPs must be consistent with species recovery plans. HCPs also require NEPA and Section 7 ESA reviews. 50 Candidate conservation agreements (CCAs) with assurances (CCAAs) CCAs are formal agreements between the Services and one or more parties to address the conservation needs of proposed or can- didate species, or species likely to become candi- dates, before they become listed. The CCAA provides users with the assurance that if they implement various conservation activities, they will not be subject to addi- tional restrictions if the spe- cies becomes listed under the ESA. The assurances are only available to non- federal entities for actions on nonfederal lands. Private landowners can use their land in a manner consistent with the agreement with the assurance that if they implement agreed-on conservation measures, they will not be subject to additional restrictions if the species becomes listed under the ESA. CCAAs are transferable to subse- quent owners of the land if they choose to participate in the agreement. The CCAA program is specifically targeted to nonfederal landowners. Incidental take may or may not be authorized (depending on the agreement and the species) for certain actions. Landowners may need to identify and use external sources of fund- ing to implement the agreement. Monitor- ing and reporting are required. 51 Table 5.1. Essential Features and Limitations of Mechanisms for Regulatory Assurances (continued) Regulatory Tool Description Assurances Provided Advantages Disadvantages Page Number in Report

28 resources. These agencies include state historic preservation officers, the Advisory Council on Historic Preservation, USFWS, USACE, and others. The tool kit focuses primarily on programmatic agreements that fulfill FHWA’s responsi- bilities under Section 106 of the National Historic Preserva- tion Act of 1966. There are plans to expand the listing in the toolkit. FHWA also maintains an internal list of all agree- ments (American Association of State Highway and Trans- portation Officials, Programmatic Agreement Tool Kit). • DOT programmatic consultation guidance: In 2000, USFWS, in cooperation with FHWA, provided this guidance to help streamline ESA compliance on transportation projects. The USFWS Director’s Order 108 gives guidance on how to establish these agreements. Order 108 provides uniform guidance for implementing reimbursable funding agree- ments between USFWS and state DOTs. A critical part of this order is cooperative USFWS participation “in the pre- scoping and scoping stages of transportation planning, when environmental concerns can be resolved most effectively.” Thus, USFWS would be initially engaged by the acting agencies at the earliest stage of planning efforts. USFWS is developing updated programmatic consultation guidance for transportation, as well as more general programmatic guidance (U.S. Fish and Wildlife Service and Federal Highway Administration 2000). • AASHTO library of best practice programmatic agreements: AASHTO maintains a library of programmatic agreements developed to streamline compliance with federal environ- mental laws. The library is publicly accessible on the web and anyone can submit a request to add a programmatic agreement to the library (American Association of State Highway and Transportation Officials, Programmatic Agreement Library). CWA Perspective Off-site mitigation enables consolidation of smaller, poten- tially scattered mitigation sites into a larger, potentially more important and effectively managed mitigation area. Likewise, off-site mitigation offers the opportunity to address larger watershed needs, if planned with that as a priority. Multiple- project—and frequently multiresource—mitigation can be accomplished through consolidated mitigation such as bank- ing or ILF programs, which can be oriented toward broader ecosystem-based mitigation. The USACE rule enhances the opportunity for multiresource mitigation opportunities by means of watershed plans or other regional conservation plans (regulatory or nonregulatory) (U.S. Army Corps of Engineers and U.S. Environmental Pro- tection Agency 2008). Because the focus of the regulatory program and mitigation is on replacement of aquatic and wetland functions (in-kind or out-of-kind), mitigation is typi- cally designed to serve multiple resource functions and values. The new rule provides additional assurance elements ranging from siting to postconstruction monitoring of mitigation sites. The new rules also highlight the benefits of programmatic approaches such as North Carolina’s Ecosystem Enhancement Program and the Washington State DOT’s (WSDOT) Trans- portation Permit Efficiency and Accountability Committee. ESA Perspective According to the USFWS’ conservation banking guidance, credits from a conservation bank may be used to compensate for environmental impacts authorized under other programs, such as CWA Section 404 (U.S. Fish and Wildlife Service 2003). If impacts occur on the same acre, with multiple species or resource values, resources that provide similar crosscutting values elsewhere might be conserved at one location. In some instances, a bank may contain habitat that is suitable for multiple listed species. When this happens, it is important to establish how the credits will be divided. For instance, once a project buys a credit for one species, that credit cannot be sold again for another species. If the proposed project has impacts on multiple species and the bank contains the same multiple species, then the credits can be sold for in-kind replacement. As a general rule, overlapping multiple species credits can overlap for a single project, but not multiple projects (U.S. Fish and Wildlife Service 2003). Advantages, Disadvantages, and Examples Programmatic approaches seek and usually deliver greater efficiency and effectiveness. The four examples that follow highlight advantages and disadvantages. Oregon Transportation Improvement Act Program When the Oregon DOT and FHWA began working with several federal and state regulatory and resource agencies in late 2002 to develop permitting strategies to meet dual goals (providing timely review of individual permit applications for the Oregon bridge renewal program and protecting or enhancing the natural and built environments), they identified the following criteria for their permitting approach: • Efficiency: A primary goal of the streamlining effort was to minimize redundancy of permitting hundreds of similar projects, reducing the duration of consultation with the federal wetland and water-quality permitting agencies (the Services) and the state permitting agency (the Oregon Department of Fish and Wildlife). • Legal defensibility: The higher the risk of liability and legal challenge, the less desirable the approach was to the Oregon DOT and the resource/permitting agencies.

29 • Simplicity: Approaches that reduced the regulatory process to the simplest method possible were favored. • Stewardship: A key objective for the Oregon DOT was to demonstrate commitment to the stewardship component of the agency’s transportation mission through building green bridges with minimal effect to the environment. • Agency relations: Maintaining excellent agency relations was of paramount importance to the Oregon DOT. Oregon DOT’s multiresource approach addressed water and wetland resources and fluvial performance standards, as well as listed and nonlisted species, for which environmental performance standards were designed to minimize and avoid impacts. A fluvial performance standard was developed to ensure that bridges replaced under the Oregon Transporta- tion Improvement Act (OTIA) III Program would enhance, not simply maintain, geomorphologic features at bridge sites (Bonoff et al. 2005). The Oregon DOT received the BO 3 months after submitting the BA. The joint BO from NOAA Fisheries and USFWS addressed 73 threatened, endangered, proposed, and selected sensitive species and their designated or proposed critical habitat. In addition to listed fish, wildlife, and plants, the BA satisfied the requirements of the Oregon ESA, Marine Mammal Protection Act, Magnuson-Stevens Fishery Conservation and Management Act, and Fish and Wildlife Coordination Act. Using the programmatic approach, 85% to 90% of the bridges under the OTIA III Bridge Program were permitted, resulting in significant time and cost savings. By late 2008, Oregon DOT found that the program had already saved about $75 million. This Oregon DOT approach has involved relatively little off-site mitigation to date. Colorado DOT Shortgrass Prairie Initiative With the shortgrass prairie initiative, the Colorado DOT sought coverage for all small- and large-capacity projects that might occur in the ecoregion while reducing the risk of listing widespread candidate species (e.g., prairie dog, mountain plover, others) that would require consultation on nearly every project. Another objective was enhancing conservation and habitat management for over 30 other imperiled and listed species as well as important, nonlisted indicator species and aquatic resources. USFWS sought to ensure implementa- tion of best management practices (BMPs) in state-funded maintenance, over which federal agencies had less control, along with a standard set of construction practices, most extensively applied in aquatic areas. Efficiency, utilization of existing species recovery and ecoregional conservation plans, leadership, legal defensibility, anticipated threats and costs, transparency and simplicity, stewardship, making tangible improvements for regulated species, and increasing the resilience of the ecosystems were all driving factors. Finally, proactive, advance mitigation yielded advantageous mitiga- tion ratios. USFWS approved all sites and the ongoing monitor- ing and adaptive management strategy in the programmatic BO. Project-level BAs/BOs are expected to be five pages or less and discuss projects’ fit within the programmatic approach (Colorado Department of Transportation et al. 2001). North Carolina’s Ecosystem Enhancement Program North Carolina’s Ecosystem Enhancement Program (EEP) is focused primarily on aquatic resources. The east coast and the state of North Carolina have many fewer listed species than the west coast, but some projects target aquatic species, such as endangered mussels. Through one of the first statewide watershed-based and -oriented 404 mitigation programs in the country, the EEP’s agreement with the North Carolina DOT, North Carolina Department of Environment and Natural Resources (DENR), and USACE provides • High-quality, cost-effective projects for watershed improve- ment and protection; • Compensation for unavoidable environmental impacts associated with transportation infrastructure and economic development; and • Detailed watershed planning and project implementation efforts within North Carolina’s threatened or degraded watersheds (North Carolina Department of Environment and Natural Resources, Ecosystem Enhancement Program). San Diego’s TransNet Program In San Diego, California, TransNet, a local transportation and environmental mitigation bond program, will provide $850 million for the San Diego Association of Governments’ (SANDAG) Environmental Mitigation Program. SANDAG employs the program to help fill the mitigation needs of the major transportation infrastructure improvement projects and programs identified in the regional transportation plan. In particular, the Environmental Mitigation Program pro- vides for the proactive, large-scale acquisition and manage- ment of habitat lands for future mitigation in advance of the requirements of each individual project. The program allows SANDAG to buy land early—at lower costs—and bank it for future needs. For resource agencies, it ensures conservation of land that would be otherwise developed and unavailable for conservation in the future. SANDAG estimates that $200 million in economic savings could be achieved, which could in turn be applied to region- wide habitat preservation efforts like the Multiple Species Conservation Program and the Multiple Habitat Conservation Program. In 2008, the agencies involved signed an agreement on how they are going to work together, and the board certified

30 acquisition criteria and a finance plan to determine how much will be allocated each year. Acquisitions have been completed, and USFWS has issued a BO for Highway 176, among other areas (San Diego Association of Governments, TransNet). Clean Water act Section 404 assurances Overview Avoidance and minimization are required before the selection of any type of compensatory mitigation under the CWA. This approach is also a common expectation for conservation of other resources. The approaches in this section describe alternatives to project-by-project compensatory mitigation, as the latter is generally small in scale and may not be able to sufficiently address landscape-scale or watershed priorities. Discrete mitigation projects focused on one resource are often the easiest for agencies to process and consider; however, the National Research Council of the National Academy of Sciences recognized the shortcomings of this approach to compensatory mitigation in their report titled Compensating for Wetland Losses Under the Clean Water Act. This report states that “The [NAS NRC] committee endorses the watershed approach and finds the automatic preference for in-kind and on-site compensatory mitigation to be inconsistent with that approach” (National Academy of Sciences 2001). Although some functions, such as water filtration, are best implemented on-site through BMPs, the report noted that “especially under a watershed approach” frequently “on-site or in-kind miti- gation is neither practicable nor environmentally preferable” (National Academy of Sciences 2001). The 2008 Mitigation Rule (U.S. Army Corps of Engineers and U.S. Environmental Protection Agency 2008) specifically adopts a watershed approach. It requires that no matter what type of compensatory mitigation is selected, the decision must be guided by determining how compensatory mitiga- tion will best address defined aquatic resource needs. Such needs are guided by “the best tool for planning compensatory mitigation, a holistic watershed plan” (National Academy of Sciences 2001). Holistic watershed plans are those that (1) have been reviewed and approved by federal and state agencies; (2) consider multiple stakeholder interests and competing land uses; and (3) address issues of habitat, water quality, hydrology, cumulative impacts, and restoration priorities for a watershed (National Academy of Sciences 2001). In the absence of such a plan, the National Research Council and USACE have said a watershed-based approach to mitigation should be used to develop mitigation proposals. A watershed approach takes into account a wide range of factors: site conditions that favor or hinder success, the needs of sensitive species, chronic environmental problems such as flooding or poor water quality, current trends in habitat loss or conver- sion, current development trends, and the long-term benefits of available options. Rules for the siting, design, and execution of mitigation banks are now more formally established. The 2008 Mitiga- tion Rule raises the value of preservation in an overall com- pensatory mitigation package, particularly for resources that are seen as difficult to replace, and provides additional flexibil- ity in implementing a watershed approach to compensatory mitigation. Required compensation ratios remain greater for the preservation component of a proposed compensatory mitigation package. Finally, out-of-kind mitigation is sup- ported under the 2008 regulations, provided that an approved watershed plan identifies specific aquatic resource needs within the watershed (U.S. Army Corps of Engineers and U.S. Environmental Protection Agency 2008). An overview of the key mitigation elements now required by the USACE mitigation rule and the associated assurances they support is provided in Table 5.2. Wetland Banking How It Works Wetland mitigation banking involves the restoration, cre- ation, and enhancement of wetlands. Mitigation banking can also include preservation of wetlands expressly for the pur- pose of compensating for unavoidable losses to wetlands and other aquatic resources. The overall goal of a mitigation bank is to provide economically efficient and flexible mitigation opportunities while fully compensating for wetland and other aquatic resource losses in a manner that contributes to the long- term ecological functioning of the watershed within which the bank is located. This goal includes the need to replace essential aquatic functions that are at risk of loss within the bank’s service area. Generally, mitigation banking involves the bank sponsor restoring, enhancing, establishing, and/or preserving wet- land and aquatic habitat in advance of development actions. Mitigation banks are established through an interagency team review process that includes development of banking agree- ments signed by USACE, responsible resource agencies, and the bank sponsor. Any member of the public can purchase credits from the bank sponsor to provide compensatory mitigation for unavoidable impacts at the proposed project site. Consistent with guidance, permittees may use mitigation credits from a bank, approved through the interagency review team, as partial or full compensation for unavoidable losses to the aquatic environment. Mitigation banking has a solid basis in CWA regulations as interpreted by USACE and EPA. This position was described in the 1995 wetland mitigation banking guidance and further

31 strengthened and clarified in the 2008 Mitigation Rule (U.S. Army Corps of Engineers and U.S. Environmental Protection Agency 2008). Transportation legislation has also supported the concept. TEA-21 established a preference for mitigation banking. Banks may be publicly or privately owned, profit or nonprofit. Implementing guidance for the preference says that, to the extent that a mitigation bank will provide suitable compensation for impacts on Waters of the United States caused by a federal aid highway project, a bank should be approved for use. In deciding among more than one approved bank “and where other suitable mitigation alternatives have been identified, the FHWA and State DOT will choose among suitable alternatives based on availability and practicability” (Federal Highway Administration et al. 2003). Practicability considerations used by FHWA include “cost, existing tech- nology, and logistics, in light of overall project purposes” (23 CFR 777.2). USACE and EPA, for Section 404 purposes, define practicability in a similar manner and consider prac- ticability a factor in determining the overall suitability of alternatives and compensatory mitigation according to the 404(b)(1) Guidelines (40 CFR 230.10[a][2]). Advantages and Disadvantages Mitigation banks generally reduce uncertainty over the ecologi- cal success of the mitigation. Banking has been considered ben- eficial, particularly in its provision of compensatory mitigation in advance of impacts (i.e., temporal benefits), although in Table 5.2. Overview of the Key Mitigation Elements Required by USACE Mitigation Rule Mitigation Elements Description Assurances Site selection criteria Agency measures and evaluators that help to optimize external and site-specific conditions that could affect success of mitigation site. Optimal sites are identified by DOTs, banking sponsor, ILF sponsor, consistent with USACE mitigation rule. Site protection instruments Site-specific and external land protection mechanisms. Assure long-term functionality of site by controlling site use and adjacent land use, which, if altered, could affect quality of mitigation. Baseline information— impact sites Data and information required to assess functions of aquatic resource affected and determine functional replacement goals. Site characterization using validated methods assures that affected site features are clearly understood rela- tive to functions provided. Baseline information— compensation sites Data and information required to assess overall match of mitigation site with original site affected relative to ecosystem functions provided. Site will replace lost functions and/or be suitable as a mitigation site. Credit determination methodology Mechanism for measuring value of ecosystem services to be provided and/or mitigated. Lost functions will be replaced on a 1:1 or greater basis based on aquatic resource type and credit system used. Mitigation work plan Conceptual, design, and construction plans for mitigating lost functions of aquatic site. Establishes physical, biological, and hydrologic components of replacement aquatic site. Maintenance plan Identify measures that will be taken at mitigation site to assure that mitigation objectives (functions) are achieved. Components of mitigation site are sustained to assure mitigation objectives are achieved per permit. Ecological performance standards Observable or measurable physical, chemical, and/or biological attributes that are used to determine if a mitigation project meets its objectives. Attribute data to set performance standards for measuring if mitigation site meets its objectives. Monitoring requirements plan Plan to identify what and when data and information will be collected to determine mitigation site’s conformance to approved plans and specifications. Information and data used to support and document that mitigation site meets permit conditions and overall mitigation site objectives. Long-term management plan Plan to establish long-term stewardship of mitigation site, including ownership and ongoing maintenance after site is determined to meet conditions of permit. Actions will be taken to protect site and conduct mainte- nance to assure long-term functions provided are sustained. Adaptive management plan Plan that identifies the management strategy for antici- pating challenges with the mitigation site and identifies actions and commitments to optimize performance. Both known and unknown challenges will be dealt with over the long term. Financial assurances Monetary commitments required to assure that mitigation site will be obtained, monitored, and managed under the conditions of the permit. Adequate funds will be available to complete the compensatory mitigation project and comply with conditions of permit. Source: U.S. Army Corps of Engineers and U.S. Environmental Protection Agency (2008).

32 actual implementation, a portion of credits may be released at the initial establishment of a bank through long-term pro- tection of the mitigation site. Phased credit release allows banks to sell credits as specific milestones are met. Bankers have also been criticized for unrealistic long-term management plans and presuming that resource agencies or local jurisdictions will assume long-term management. Usually these issues should be resolved before bank authorization through the banking instrument, but sometimes unrealistic plans leave these issues addressed in ways that fall short of long-term viability. According to the 1995 guidance, mitigation banking is authorized when “on-site compensation is either not prac- ticable or use of a mitigation bank is environmentally prefer- able to on-site compensation”; it is expected to reduce permit processing times and provide more cost-effective compensatory mitigation opportunities (U.S. Environmental Protection Agency and U.S. Army Corps of Engineers 1995). The 2008 Mitigation Rule actually established a soft preference for the use of banking and ILF approaches, in part again because compensation is in place before the impacts occur, but also because such mitigation is assumed to involve “larger, more ecologically valuable parcels, and more rigorous scientific and technical analysis, planning and implementation, than permittee-responsible mitigation” (U.S. Army Corps of Engi- neers and U.S. Environmental Protection Agency 2008). Examples of Wetland Banking Interviewees at the Michigan DOT indicated that mitigation construction and private mitigation banking costs were generally $75,000 to $150,000 per acre. Michigan DOT brought costs down to about $25,000 to $30,000 per acre and increased efficiency and wetland success by implementing a watershed approach. First, the department funded wetland mitigation in advance, separately from projects, which facilitated selection of consolidated mitigation areas designed to address watershed needs. Subsequently, it developed a wetland mitigation site selection tool that helps staff perform watershed analysis and evaluate the restoration potential of prospective sites, based on weightings of hydric soils, historic wetlands, and topographic wetness. When mitigation was tied to projects, Michigan DOT typically took regulators to four or five sites, and if none were acceptable, might take them to four or five more. Now, however, the process helps the department easily screen out poor sites; as a result, regulators now approve 95% of the sites on the first showing, making much better use of regulators’ time and producing more effective and successful mitigation sites. An interviewee in the Kentucky Transportation Cabinet indicated that they have also dramatically reduced costs by partnering with USFWS to find Section 404 mitigation sites. A presentation documenting their approach is available online (Waldner, Streamlining ESA and USACE Processes). The WSDOT Springbrook Creek Wetland and Habitat Mitigation Bank was designed to reduce the impacts of current and future transportation and development projects in and around the city of Renton. This project enhanced 110 acres of wetlands and buffer, restoring and creating a larger, connected 20 acres of wetland. Among the benefits, the Springbrook Wetland and Habitat Mitigation Bank project set up the site in advance of project development and wetland impacts and consolidated mitigation for multiple small wet- land impacts into one large site with greater ecological value (Washington State Department of Transportation 2009). The Illinois DOT wetland mitigation banks include the 830-acre Morris site in north-central Grundy County; the 1,640-acre La Grange site in extreme northeastern Brown County; and the 105-acre Sugar Camp Creek site in central Franklin County. At these sites, wetlands were restored in advance of unavoidable losses from highway projects. Impacts within the bank’s approved service area may be mitigated at the bank. Instruments for both the Morris and La Grange bank sites were prepared in accordance with the 1995 federal guidance. Sugar Camp Creek was prepared in accordance with the April 10, 2008, Compensatory Mitigation for Losses of Aquatic Resources; Final Rule (U.S. Army Corps of Engineers and U.S. Environmental Protection Agency 2008). The Illinois DOT also sponsors three multiuse wetland compensation sites located on the floodplain of the Mississippi River in Madison and St. Clair counties, which function similarly to banks. Wetlands have been restored on each of the sites before any loss from highway construction. Use of the sites is deter- mined on a case-by-case basis. Each of these sites is or will be protected in perpetuity with a conservation easement or a similar instrument and will be transferred to a resource agency or conservation organization for long-term management (Illinois Department of Transportation, Illinois Wetland Mitigation Banks). In Lieu Fee How It Works An ILF arrangement provides required compensatory miti- gation off-site for impacts on Waters of the United States. Generally, funds are paid to a nonprofit or governmental entity such as a state natural resource agency that has performed watershed analyses and planning and carries out the mitigation project. ILF mitigation is based on watershed needs identified by the state, watershed groups, and other conservation partners. The purchaser of ILF credits provides payment for mitigation to a sponsor for a mitigation project, similar to purchasing credits from a mitigation bank, typically providing more flexible implementation. For example, the Florida DOT pro- vides funding to water management districts on a per acre fee,

33 established by state legislation, for unavoidable impacts. Water management districts conduct water-quality and restoration planning within their districts, identifying both preservation and restoration needs. Advantages of ILF Most ILF programs reviewed are offered by nonprofit orga- nizations or land trusts whose primary missions are focused on natural resource conservation; thus, the organizations are geared to maximize ecological benefit rather than maximize financial returns for the owner/investor (Environmental Law Institute 2006). These organizations tend to have expertise in prioritizing sites for their ecological and other environmental values and have significant experience working collaboratively with diverse groups to achieve beneficial ecological outcomes (Environmental Law Institute 2006). ILF programs have been pioneers in watershed-based site selection and ensuring long-term stewardship of conservation and restoration sites. Programs tend to be targeted by water- shed and thus more effective at addressing specific local needs. They also tend to have more intimate, historical knowledge of local resources. Disadvantages of ILF Although DOT-supported ILF programs typically ensure compensatory mitigation in advance of impacts, with other ILFs, the lag between the time that permitted impacts occur and when mitigation projects are implemented is more difficult to manage for permittee-responsible and ILF mitigation. Also, securing upfront funds to implement the project can be more challenging for nonprofit organizations and land trusts, which often have less access to the public and private capital necessary to offset the significant upfront expenses typically associated with private or publicly funded banks. Unrealistic plans for financing acquisition, implementation, and long-term management can be problematic. Some ILF programs have accepted fees after the agreement is in place but before site identification and have underestimated the costs to replace the aquatic resources lost. Accountability and record-keeping were early problems in some cases. A disconnect between the goals and objectives of USACE and mitigation providers can occur when the goals of the conservation organizations and USACE do not completely coincide. For example, a particular conservation organization may prefer land preservation and focus on larger watershed or ecoregion needs, while USACE may focus on replacing affected aquatic resource functions. The issues of the Wetland Mitigation Bankers Association and the disadvantages previously described were largely addressed with the 2008 federal mitigation regulations; ILF programs now operate more like a bank. Watershed planning remains a key focus of ILF programs, highly compatible with the decisive focus of the 2008 regulations. A prospectus and ILF instrument must be developed by the sponsor and approved by the district engineer in the appropriate USACE district before compensatory mitigation dollars can be accepted. Examples of ILF North CaroliNa ECosystEm ENhaNCEmENt Program In order to deal with a rapidly expanding transportation program with a high volume of new alignment, the North Carolina DOT and DENR designed the Ecosystem Enhance- ment Program (EEP). EEP evolved from a multiyear effort by state and federal agencies: the North Carolina DOT, DENR, the North Carolina Wildlife Resources Commission, USACE, EPA, and USFWS. Goals were to streamline the project delivery process for transportation improvement projects through the use of a programmatic mitigation approach, to reduce environmental impacts in concert with avoidance and mini- mization, and to incorporate the compensatory mitigation requirements for these projects into comprehensive watershed restoration and protection strategies. A year of multiagency process-improvement workshops determined that compensa- tory mitigation should be decoupled from individual permits and project reviews and performed on a watershed basis, with mitigation projects constructed in advance of permitted impacts. The EEP incorporated the functions of the North Carolina Wetlands Restoration Program, a state ILF program initiated by the North Carolina state legislature in 1996. The program was established by the North Carolina General Assembly as a nonregulatory statewide wetlands restoration program for the acquisition, maintenance, restoration, enhancement, and creation of wetland and riparian resources that contribute to the protection and improvement of water quality, flood preven- tion, fisheries, wildlife habitat, and recreational opportunities. With the inception of EEP, all of the North Carolina DOT’s off-site compensatory mitigation needs would be met through EEP, and the EEP’s mitigation effort would be watershed based, through analytical efforts conducted on the state level and through consultation with local experts and communities. EEP protects the state’s natural resources through assess- ment, restoration, enhancement, and preservation of ecosystem functions and through identifying and implementing compen- satory mitigation programmatically at the watershed level. The system used by the EEP • Enables multiple project impacts (wetlands, stream corridor, water quality, species, and habitat) to be addressed in a comprehensive manner, in advance of project impacts. • Targets mitigation resources to better protect the natural resources of the state by assessing, restoring, enhancing,

34 and preserving ecosystem functions and compensating for impacts at the watershed level. The program addresses watershed concerns, including preservation of threatened high-quality sites and restoration of wetlands and riparian buffers along impaired streams. The system also ensures that the state and FHWA’s “no net loss” objectives are met and surpassed. • Saves time and money by reducing permit staff workload and project controversy and by improving communication, planning, and environmental stewardship. • Dramatically increases the ecological effectiveness of the investments of public dollars in compensatory mitigation, thus illustrating better stewardship of public resources, and setting a nationwide standard for mitigation at the ecosystem level for unavoidable impacts resulting from transportation improvements. EEP’s streamlined approach evaluates the cumulative impacts of all transportation projects within a watershed and implements mitigation focused on achieving a net increase in wetland and riparian functions in the watershed and across the state. As it is able and when information exists, EEP incorporates other data trends for private development and municipal infrastructure projects into its estimated water- shed approach and mitigation planning effort. The program developed an environmental information and decision support system for identifying watersheds in which to concentrate planning and restoration activities. The system enables a com- parison of the relative problems and assets of the local water- sheds by relying on GIS data analysis of five broad categories of information: baseline watershed conditions, watershed resources or attributes, watershed problems, potential threats and stressors, and other factors of interest. Local watershed data from existing databases and functional assessments, as well as baseline watershed conditions data, are entered into a watershed attribute matrix for each 14-digit local watershed. Analysis narrows the field of eligible local watersheds by selecting only those areas with a combination of restoration needs and opportunities, potential future stressors (primarily anticipated growth and development), and other factors, such as local interest (North Carolina Wetlands Restoration Program 2001). Once the screening methodology has been applied to identify target areas for restoration, EEP works with local governments, NGOs, and other stakeholders to complete local watershed plans, including a baseline assessment, a detailed watershed analysis, and development of an implementation plan. To ensure that program goals are met, a ledger of imple- mented projects and actual impacts is produced for each watershed. Annually, these ledgers are compared to determine if “no net loss” of wetland and riparian functions has been achieved. Any shortcomings are programmed for correction in the next cycle. Excess mitigation is reserved for future use. Strategies also take into account North Carolina’s Million Acre Initiative and areas of important habitat value, with the goal to leverage the state’s and the North Carolina DOT’s investment (North Carolina Department of Environment and Natural Resources, Million Acre Initiative). Florida dot WEtlaNd mitigatioN Program The Florida DOT Senate Bill mitigation program (currently referenced as Florida Statutes 373.4137) was established by the Florida legislature in 1996 (amended in 2005) to provide regional, multiproject wetland mitigation to offset the impacts of transportation projects on wetlands. With this program, Florida DOT provides mitigation funds to the representative water management district for each acre of wetland affected by Florida DOT’s transportation improvement projects. The amount of mitigation funds is predetermined based on a cost per acre of wetland impact and transferred to a state transportation trust fund. During FY 2008–2009, the cost per acre of wetland impact was approximately $99,000. Each year, each of the state’s five water management districts develops mitigation plans for projects that Florida DOT, or another transportation authority, expects to implement in the coming fiscal year. These projects are included in a Florida DOT work plan submitted to the water management districts. Project impacts are estimated and planned for years in advance, but the Florida DOT work plan is updated annually based on priority and the availability of construction funds. After miti- gation plans are approved and funds are available, Florida DOT transfers funds into an escrow account within the state transportation trust fund. The water management district may then request a transfer of funds to implement its mitigation projects. Anticipated escrow funds for the next fiscal year form the basis for the program’s annual work plan. If no project- specific mitigation plan has been approved by the water management district, then Florida DOT must develop an alternate mitigation plan. The advantage to using Senate Bill mitigation for Florida DOT projects is that wetland impact costs can be predetermined and budgeted at a much earlier point in the process. This program also allows Florida DOT to mitigate wetland impacts for projects that are not located within a mitigation bank service area and to provide mitigation funds to the water management district without a concern for future maintenance and moni- toring costs that would be associated with wetland creation or enhancement. The cost has occasionally been a disadvantage in south Florida, where wetlands are more plentiful and Florida DOT districts can purchase mitigation bank credits at a lower cost with the same assurances of mitigation success. Therefore, not all mitigation for Florida DOT transportation projects is handled with Senate Bill mitigation. It is at each district’s dis- cretion to use the Senate Bill program based on impact costs and coordination with the local water management district.

35 Nationwide Permits, State Programmatic General Permits, and Regional General Permits How It Works USACE issues a nationwide permit (NWP), state programmatic general permit (SPGP), or regional general permit (RGP) to authorize certain activities that result in minimal adverse effects on aquatic resources. These permits provide an abbreviated review process for certain types of activities that USACE has determined would minimally affect the aquatic environment. NWPs apply across the nation, but depending on the geo- graphic region, they may have regional conditions to ensure activities will have minimal impacts on the aquatic environ- ment. SPGPs are general permits issued by USACE that are administered by a state agency on behalf of USACE. RGPs are similarly developed to provide an abbreviated review process for certain types of activities within a certain geographic region. Advantages and Disadvantages By developing a project such that an NWP, RGP, or SPGP would apply, applicants have shown strong actions to avoid and minimize potential impacts. It is these projects in particular that can benefit from advanced compensatory mitigation measures such as banks, ILFs, and similar actions. SPGPs and RGPs can reduce duplication of effort and enable tailoring of specific general permits to types of projects and unique local conditions not covered by NWPs. RGPs can be developed in association with special area management plans (SAMPs) and watershed plans to implement their preservation, enhance- ment, and mitigation objectives while adding predictability to the development process. Examples of NWPs, SPGPs, and RGPs Florida dot aNd Florida turNPikE ENtErPrisE rEgioNal gENEral PErmit saJ-92 This permit is authorized for use only in nontidal Waters of the United States and within the operation areas of the Florida DOT and Florida Turnpike Enterprise and applies to three types of projects specifically approved by FHWA. These types of projects are Type 1 categorical exclusions, program- matic categorical exclusions, and capacity improvement proj- ects. This permit is limited to linear transportation projects that have been reviewed through the Florida DOT efficient transportation decision-making process (U.S. Army Corps of Engineers 2008). orEgoN rEgioNal gENEral PErmit An RGP approach was also developed in Oregon. Prior to the Oregon Bridges project, an interagency process-improvement group using the Collaborative Environmental and Transporta- tion Agreement for Streamlining tracked environmental impact statement–level projects and environmental assessment–level projects and facilitated discussion and concurrence points. The bridge program benefited from “a list of where the bridges were and a lot of really good scoping information, which went into the baseline reports. They had a lot of information on the impacts. That provided a high enough level of comfort to develop a RGP.” The Oregon Bridges program uses several appropriate NWPs in addition to the RGP they developed. Special Area Management Plans How It Works SAMPs balance aquatic resource protection and reasonable economic development and result in both abbreviated Sec- tion 404 permitting and restrictions on undesirable activities. SAMPs can also be used to facilitate a watershed approach and transfer of development rights from areas where devel- opment should be avoided to areas where development may be allowed. SAMPs can address comprehensive infrastructure plans, including power lines, communication lines, and water, sewer, and gas lines. SAMPs are often developed in geographic areas of special sensitivity under intense development pressure. They offer comprehensive advance planning to identify wet- lands that merit protection and others that may be developed, as well as increased predictability for property owners, project planners, and local governments. RGPs are often based on SAMPs. Development of programmatic and general permits based on SAMPs is also a goal (Field 2004). SAMPs usually develop landscape-level functional assess- ments, watershed-scale indices of the ecological integrity of riparian resources, alternatives analyses, and watershed res- toration plans. Interagency, public, and stakeholder involve- ment is an essential part of the SAMP. The SAMP should not be considered as a super permit that accelerates development in the watersheds, but it does give greater clarity and predict- ability to conservation priorities and development processes. DOTs can use these landscape plans and mitigation priorities to seek and develop advance mitigation opportunities focused on sites in the SAMP already endorsed by other agencies. Advantages and Disadvantages Districts that have adopted this watershed approach have seen initial positive outcomes in terms of time efficiencies and pro- gram effectiveness. Having information on wetland locations and priority restoration and conservation areas available greatly increases the voluntary and proactive wetland avoidance that can occur on local, regional, and state levels. Categorization of wetlands into those that are critical and not-so-critical to

36 protect is controversial, though there is recognition of the need to ensure public resources (including conservation and restoration investments) are spent wisely. Adopting an ecosystem approach to infrastructure projects allows USACE some flexibility in assessing the effects of activities in uplands on Waters of the United States and gaining other agencies’ buy-in and assistance in addressing indirect and cumulative impacts beyond USACE scope, as well as priority conservation and restoration needs. In sum, the watershed approach enabled by SAMPs, ILFs, and now mitigation banks gives USACE more influence over Waters of the United States and the functions and values they provide and a better chance at protecting them. When used as a tool to direct resource planning, SAMPs are considered more strategically focused on critical regional ecological resources than the traditional project-by-project mitigation site-identification process. Traditional approaches to mitigation in the site-specific context may lead to the cumulative loss of resources over time; in contrast, SAMPs are fashioned to take into account indirect and cumulative effects on aquatic resources over a region. SAMPs can provide DOTs with valuable baseline information on what high-priority aquatic and terrestrial resources exist and also can address priority restoration needs. SAMPs often identify lower-priority wetlands, as well, which are either less critical to protect for their immediate value or which could offer restoration priority areas. USACE has found that developers’ proposals tend to avoid the most important resources; they also tend to offer creative proposals for how to restore priority areas (personal communication with Corps SPL District staff, including M. Durham and C. Farrar, 2009 and 2010). Examples of SAMPS Examples of completed SAMPS are provided in Table 5.3. Coastal ZoNE maNagEmENt Program SAMPs are used by USACE and NOAA as part of their coastal zone management program. The Los Angeles District’s objectives in implementing watershed plans were to maximize environmental protection and use their own staff resources better. Through the mechanism of a SAMP, the district was able to identify important resources, steer impacts away from the most critical ones, determine levels of impacts (at both direct and cumulative scales) that could be considered minor, and offer appropriate permitting vehicles for both minor and larger projects. The Los Angeles District found that since SAMPs and associated RGPs have been in place, applicants have been able to recognize key areas and resources early in the planning process and better avoid impacts on these important ecosystem components. This reduces, and in some cases eliminates, potential conflicts between agency and applicant and eases the permitting process. Although ecosystem outcomes have not been measured in a functional sense, the approach has led to better protection of resources and functions, better use of USACE staff time (as well as applicants’ staff time), and a better understanding of the resource. altErNativE dEvEloPmENt sCENarios aNd ECosystEm iNtEgrity iN southErN CaliForNia Several landscape-scale assessment efforts, including SAMPs for aquatic resources, are being led by the Los Angeles District and staff from the USACE Engineer Research and Development Center. Watershed-scale aquatic resource delineations were undertaken for each SAMP by using field-verified GIS and remote sensing to determine where riparian ecosystems and other aquatic resources exist in the study areas. Based on the delineation, the watersheds were divided into “riparian reaches,” relatively homogenous assessment units. Baseline assessments of riparian ecosystem integrity were performed for each of the riparian reaches in the study area. The assessment process includes consideration of three indicators: hydrology, water quality, and habitat integrity. Groups of indicators were then combined to generate hydrology, water quality, and habitat integrity indices. Based on the index scores, the reaches were ranked according to their ecological integrity. The reach rankings were among the factors considered in analyzing alternatives and developing watershed restoration plans. To determine which development scenarios would result in the least degradation of riparian resources, baseline ecological index values were compared with the index values under various simulation conditions. In the watershed restoration plan, riparian restoration opportunities within the study area were identified and compared. For each riparian area, the SAMP team estimated a restoration potential, a measure of functional restoration that is practical given existing conditions, with particular focus on geomorphic features and processes. The team can assess the cost-effectiveness of various combinations of restoration activities, such as concentrating restoration in the most degraded reaches or prioritizing those projects that are expected to provide the greatest functional lift per unit of effort. All inventory, assessment, alternatives analysis, and planning activities are linked to GIS databases, allowing the integration and visualization of the full range of data for other watershed planning activities in the study area, and expanded alterna- tives analyses for major highway projects (Environmental Law Institute 2004). rivErsidE CouNty iNtEgratEd ProJECt The Riverside County Integrated Project involves the integration of land use, transportation, and conservation planning to develop a consensus for the future development of Riverside County. It is considered a cutting edge project by locals and it is

37 Table 5.3. Representative Completed SAMPs SAMP Project (State) Description Source for Additional Information San Juan Creek Watershed– San Mateo Creek Watershed (California) USACE Los Angeles District conducted a comprehensive aquatic resource plan to achieve a balance between aquatic resource protection and reasonable economic development. http://www.spl.usace.army. mil/Media/FactSheets/ tabid/1321/Article/2925/ regulatory-program.aspx Riverside County (California) The County of Riverside undertook an integrated planning effort (Riverside County Integrated Project) that includes transportation, habitat conservation (multispecies habitat conservation plan), and the county’s general plan (local land use) in two water- sheds. The goal is to establish a watershedwide aquatic resource reserve program and to minimize individual and cumulative impacts of future projects in these watersheds. http://environment.fhwa.dot. gov/integ/case_riverside. asp South Wilmington (Delaware) The project area includes lands south of the Christina River within Wilmington, Delaware, and a portion bordering New Castle County, down to I-495. The south side of the Christina River, although urban in nature, has remained largely underused and represents one of the most significant opportunities for economic development and community revitalization in the region. This area, known as South Wilmington, is approximately 1.6 square miles. Industrial and heavy commercial uses dominate the area, particularly along the waterfront. A long industrial history has resulted in numerous areas with suspected or known soil contamination, an important consider- ation for redevelopment planning. http://www.dnrec.delaware. gov/coastalPages/ WilmingtonSAMP.aspx Upper Turkey Creek (Kansas) According to the SAMP information sheet: SAMP goals include establishing an Upper Turkey Creek advisory committee to identify, coordinate, and implement actions that address Turkey Creek resource needs. Identifying opportunities and mechanisms to educate and involve the public in enhancement of Turkey Creek is also a priority. The SAMP sought to improve Turkey Creek water quality to support native aquatic communities and enhance and maintain high-quality aquatic and terrestrial habitat in the Turkey Creek watershed. Detailed, comprehensive statements of policies, standards, and criteria to guide public and private uses of lands and waters were developed, as well as outlines of mechanisms for implementation. A regulatory component addressing USACE 404 permits, stormwater permits, and EPA regulatory information was estab- lished, as well as other relevant regulatory components identified and agreed to through memoranda of understanding (MOUs) with the various agencies and stakeholders, giving some sense of continuity and predictability based on a watershed area approach. http://www.watershedinstitute. biz/files/Turkey_Creek_ SAMP_INFORMATION_ SHEET-_20072.pdf Mentor Marsh (Ohio) This comprehensive plan sets out natural resource protection and economic growth plans for this large wetland complex on the southern shore of Lake Erie in Mentor, Ohio. The plan contains statements of policies, standards, and criteria to guide public and private uses of lands and waters within its watershed. http://www.dnr.state.oh.us/ Portals/13/partners/ mentorplan.pdf Beaufort County (South Carolina) This SAMP addresses stormwater and other sources affecting the waters of Beaufort County. It identifies the necessary actions needed to prevent further deterioration of county waters and addresses a broad range of topics and activities, including storm- water controls and management, wastewater management and septic systems, boating, and water-quality monitoring needs. http://www.scdhec.gov/ environment/ocrm/docs/ SAMP/BFTS/bsamp.pdf Revised Salt Pond Region (Rhode Island) Four priority areas for enhancing the Rhode Island Coastal Resources Management Program are addressed: SAMP, cumulative and secondary impacts, wetlands, and public access. The revisions to the SAMP also implement recommendations of the Narragansett Bay Project by developing statewide critical resource protection policies. The revisions will facilitate the implementation of Rhode Island’s Coastal Nonpoint Pollution Control Program. Beyond fulfilling program requirements and recommenda- tions, the revisions to the SAMP address the challenge of a growing population and the need for innovative land use controls to address the impacts of existing and proposed development on the salt ponds. http://www.crmc.state.ri.us/ regulations/SAMP_ SaltPond.pdf Murrells Inlet (South Carolina) Phase 1 of the Murrells Inlet SAMP involves work in partnership with Georgetown and Horry Counties to ensure that water quality is given equal consideration to water quantity in the drainage improvement projects being undertaken in the inlet water- shed. To do this, the SAMP will develop and fund a demonstration project to treat stormwater runoff to provide sufficient filtration and settling before the water reaches the inlet, examine the potential to retrofit roads and bridges that are shown to be high-impact runoff problems in the watershed, and provide input to Georgetown and Horry Counties on how they may reduce impervious surface coverage and/or move it away from receiving waters. http://www.scdhec.gov/ environment/ocrm/ plan_tech/samp.htm

38 intended to streamline the environmental process while estab- lishing long-term development goals. The project integrates four plans: a new general plan, four new transportation corri- dors under the Community and Environmental Transportation Acceptability Process, a multispecies habitat conservation plan (MSHCP), and a SAMP. A SAMP was developed to assist federal, state, and local agencies in their permitting decision-making process to protect, restore, and enhance aquatic resources while accommodating various types of development activities. The SAMP establishes an expedited review process by USACE under CWA Section 404 in conjunction with a programmatic stream- bed alteration agreement with the California Department of Fish and Wildlife. Mitigation designed in accordance with the SAMP and other plans increased assurance of mitigation acceptability for all parties (Riverside County Integrated Project, no date). Advance Identification of Aquatic Resources How It Works The EPA sponsors advanced identification of aquatic resources (ADID) pursuant to CWA with USACE and other partners in areas where development, mining, agricultural, or other pressures threaten high-quality or locally critical wetlands. ADIDs protect wetlands by providing science-based informa- tion to those making local land use decisions. Impacts on criti- cal wetlands identified through an ADID would cause a high level of scrutiny or the rejection of a permit application. Advantages and Disadvantages The ADID process provides a means to identify high-quality wetland resources in a region or at the watershed scale. The intent of identifying these high-quality wetlands in advance is to guide development away from the resource. Newer wetland mapping and data consolidation methods could increase the ease and efficiency of advance identification of wetland characterization methods and boost their use in regulatory permitting and watershed restoration processes. When used in the regulatory process, advance identification of the best locations for mitigation increases certainty and assurances that mitigation in those locations will be acceptable. The ADID approach has been considered expensive and somewhat contro- versial to implement, as some property owners might feel their land values have been diminished along with its development potential if high-quality wetlands are identified on-site. Examples of ADIDs kaNE CouNty, illiNois The Kane County ADID study is a cooperative effort between federal (EPA Region 5, USACE Chicago District), state, and local agencies to inventory, evaluate, and map high-quality wetland and stream resources in the county. ADID information is used by federal, state, and local governments to aid in zoning, permitting, and land acquisition decisions. In addition, the study provided information to agencies, landowners, and private citizens interested in restoration or acquisition of aquatic sites. The wetland functions of particular concern were identified and prioritized by a planning and policy committee. In addition, an interagency technical advisory committee developed an evaluation approach that defined two categories of wetland function: habitat value and water-quality and stormwater-storage value. The approach included an assess- ment of the opportunity of a wetland to perform a specified function, as well as its expected effectiveness in performing the function. Wetlands and streams were evaluated through GIS screening and aerial photo interpretation (U.S. Army Corps of Engineers, Kane County Illinois, Advanced Identification of Wetlands). southEastErN WisCoNsiN rEgioNal PlaNNiNg CommissioN Maps of ADID wetlands were developed under a cooperative program with USACE, EPA, and the Wisconsin Department of Natural Resources (DNR). Draft maps showing the aerial extent of ADID wetlands in southeastern Wisconsin are available in PDFs for Kenosha, Milwaukee, Ozaukee, Racine, Walworth, Washington, and Waukesha counties (Southeast Wisconsin Regional Planning Commission, Advanced Identification of Wetland Disposal Areas). Watershed Restoration and Mitigation Registries How It Works Watershed restoration and mitigation registries are an emerg- ing method to identify priority mitigation areas on a watershed basis where funds can be directed to help restore watershed health. Watershed resource registries (WRRs) are considered “a unique tool to integrate Planning, Mitigation and Sustainable Development” and a “blueprint for transitioning from a single program-based approach to an integrated (multi-program) watershed systems approach allowing for greater integration and coordination among regulatory requirements and resource protection efforts” (Denise Rigney. “Green Highways Partner- ship.” EPA Region 3. Presentation. April 8, 2008). The greater coordination and integration may act as a prescreen, improv- ing identification of prospective mitigation sites and their acceptability to regulatory agencies. As EPA describes it, a WRR helps ensure resource agencies get what they want. The WRR shows where multiple ecologi- cal benefits might be found. Sites have been evaluated in a way that maximizes the ecological benefits for the entire

39 watershed. Selected areas can fulfill multiple beneficial water- shed needs and regulatory requirements for a number of agencies at the same time. For example, restoring wetlands adjacent to a Section 303(d)–listed impaired waterway could also address Section 404 wetland compensatory mitigation requirements and Section 401 water-quality requirements while creating habitat resources and improving water quality in the watershed. The actual methods for identifying mitigation sites, both priority and nonpriority, have ranged from ad hoc websites and databases for posting restoration and mitigation site opportunities to more formal approaches such as completion of comprehensive plans (e.g., SAMPs) and other special studies to identify priority restoration areas. Even these plans vary widely in the level of analysis and information provided, ranging from general inventories of potential sites requiring further study during the development of the mitigation design to detailed studies that essentially serve as watershed plans that spell out specific sites, costs to restore, time frames for completion, and funding. Advantages and Disadvantages The integration of traditionally competing regulatory and nonregulatory authorities in one tool can improve resource planning, enhance time and resource efficiency, and minimize redundancies in the decision-making process. At one level, watershed restoration and mitigation registries are not a new concept, as applicants for Section 404 permits have been seeking mitigation sites since the need first arose. Wetland banks were created because the cost to find individual sites took considerable resources on the part of the applicant and because they were a way to mitigate lost functions while satisfying in-kind and out-of-kind mitigation requirements in an effi- cient manner. Whether they actually contributed to main- taining and restoring watershed health is an issue that has been addressed in several technical publications (Brown and Veneman 2001; Johnson et al. 2002; Kihslinger 2008; Mack and Micacchion 2006). EPA has attempted to estimate the benefits of the WRR approach. The review is available in a July 29, 2010, webinar (Bryson 2010). Examples of WRRs In a 50-state study by the Environmental Law Institute, few states reported having a method for ranking lands and aquatic sites for restoration and a state registry to identify restoration sites (Environmental Law Institute 2008). Connecticut, New Mexico, Oklahoma, and Texas were identified as having a state registry in 2008. Nineteen other states reported that they have a method for prioritizing lands and aquatic sites for restoration. There is a range of examples of watershed restoration and mitigation registries. An overview of methods for identifying priority mitigation sites is provided in Table 5.4, followed by a more detailed explanation of selected examples. marylaNd WatEr rEsourCEs rEgistry The USACE Baltimore District, EPA Region 3, and Maryland resource and transportation agencies developed a WRR to Table 5.4. Overview of Methods for Identifying Priority Mitigation Sites Method Description Key Elements State mitigation restoration database Ohio, Oklahoma, and other states have established voluntary web-based databases made available to watershed groups, communities, and project sponsors who may have or are looking for available mitigation sites (Ohio Environmental Protection Agency, Surface Water Enhancement; Oklahoma Conservation Commission, Wetlands Program). Voluntary web-based databases listing candidate loca- tions for restoration. Detailed listing of site attributes, contact information, physical characteristics of site also provided. Site information is provided by agency or entities seeking mitigation dollars. Philadelphia Watershed Mitigation Registry Pilot program intended to identify “ready to go” priority mitigation sites within the watersheds considered critical to Philadelphia’s drinking water system. Sites available for restoration have been established through comprehensive evaluation of urban and urban- izing watersheds. Areas considered important to sustaining drinking water supply. Working with USACE. Representative indicators of created hydrologic, biological, habitat, and social functions determine the value of a project, rather than project acreage. North Carolina Ecosystem Enhancement Program (EEP) North Carolina comprehensive watershed management program focused on identifying priority sites for mitigation. Comprehensive program for providing mitigation in advance of project implementation. Managed by state DNR. Requires annual report from North Carolina DOT indicating the upcoming year’s mitigation needs. Most comprehensive program of its type. (continued on next page)

40 Watershed action plans (Ohio, other states) Representative example of state program implemented by local watershed groups to identify mitigation priori- ties (Ohio Environmental Protection Agency 1997). Voluntary process designed to identify problems and establish program for protection and restoration. Requires participation of public officials and other stakeholders. One of several program examples around the United States. Species banks— ecosystem marketplace Clearinghouse for species credit trading designed to pro- vide efficient, transparent, equitable conservation mar- kets to develop and that can be used to identify priority mitigation opportunities. www.SpeciesBanking.com will serve as a platform for conservation bank owners to publicize credit availability, credit buyers to find solutions to their mitigation needs, and prospective bank developers to research current market conditions. It will also allow agency staff to learn about activities outside their jurisdictions, and academics, investors, and others to monitor and analyze industry trends (Ecosystem Marketplace, SpeciesBanking.com). Basic information such as number of banks, species covered, location, availability of credits, and contact details. Conservation Registry The concept of the registry emerged from efforts to understand the scope of conservation activities across the landscape and to identify areas where landowners and organizations can generate the greatest strategic benefits for fish and wildlife. The same group has established a state-specific conservation registry for Idaho, Oregon, and Washington and a regional spin-off in Colorado (The Conservation Registry, no date). This western United States web-based tool is an accessible database and mapping system that allows users to enter, search, map, and track conservation projects. The registry gathers data from multiple sources, ranging from small organizations and land- owners to federal resource agencies, nonprofit organizations, tribes, and foundations. The registry helps users understand the context, distribution, and effectiveness of collective efforts to protect and restore ecosystems. Watershed resource registry (Maryland) The WRR shows where multiple ecological benefits might be found. Sites have been evaluated in a way that maximizes the ecological benefits for the entire water- shed. Selected areas can fulfill multiple beneficial watershed needs and regulatory requirements simul- taneously for multiple agencies. Pilot project of the EPA Healthy Watersheds Initiative, which focuses on maintaining aquatic ecological integrity by conserving and protecting the highest-quality watersheds or intact components of watersheds (U.S. Environmental Protection Agency, Healthy Watersheds). WRRs evaluate watershed conditions and create a database of sites in a watershed for the protection of high-quality resources, restoration of impaired resources, and the establishment of treatment systems and best management practices (BMPs). A methodology for developing the WRR and for integrating its use in 404 permitting was developed based on a pilot effort focused in southwestern Maryland. EPA says the WRR will aid all those involved in watershed management decisions at the local, state, and national levels by providing the best available information on which to base decisions, in one centralized location. Pennsylvania River Registry State effort to identify priority restoration sites on a watershed basis. Funded in part by grants from the Keystone Recreation, Park and Conservation Fund, the Rivers Registry is a component of the Community Conservation Partnerships Program. These river conservation plans have been approved for placement on the registry by the Pennsylvania DNR because they meet or exceed the minimum standards in the Rivers Conservation Program (Pennsylvania Department of Conservation and Natural Resources, Rivers Conser- vation Program). One of the older programs in the United States, the registry identifies on a statewide basis where approved watershed plans have been completed. Includes an identification of restoration priorities. Table 5.4. Overview of Methods for Identifying Priority Mitigation Sites (continued) Method Description Key Elements

41 identify preferred locations for conservation and restoration in four watersheds in southwestern Maryland. To support the registry, the Baltimore District GIS staff created a comprehen- sive mapping tool that suggests what types of activities might be most beneficial to a watershed and where those activities ought to occur. The approach is now being expanded statewide for the following purposes: • To identify potential CWA Section 404 compensatory mitigation sites based on a watershed analysis and water- shed goals and needs in accordance with the 2008 Mitigation Rule; • To better use state mitigation dollars and to address 303(d)- listed streams and issues highlighted in Section 305(b) reports, thus integrating CWA authorities under Sections 401, 402, and 404 and producing a positive effect on watershed water quality; • To improve and streamline Section 404, NEPA, and state- developed decision processes; • To protect, restore, create, enhance, or preserve aquatic resources in rapidly developing watersheds and last remain- ing linkage areas before these opportunities are permanently lost; and • To identify mitigation sites that are consistent with the site needs identified in state wildlife action plans, green- ways and green infrastructure plans, species recovery plans, ecoregional conservation strategies, and city or regional open space plans (Maryland Watershed Resources Registry, no date). assurances related to eSa Section 7 Compliance with the ESA of 1973, as amended, is a key regulatory driver for conservation of listed (threatened or endangered) species and investment in ecosystem-based mit- igation by transportation agencies. Under the ESA, private and public entities invest in species and habitat conservation in order to minimize impacts and provide compensatory con- servation measures. USFWS provides transportation agencies assurances that they are in regulatory compliance with the ESA through tools such as incidental take permits, concurrence letters, or biological opinions (BOs) that specify conservation obligations. Ecosystem conservation and recovery of species, such that listing is no longer necessary, are primary goals of the ESA. As described in Section 2(b) of the act, “The purposes of this ESA are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species” (16 U.S.C. Sec. 1531[b]). That is, the ESA is a primary means to conserve ecosystems and to provide a program to conserve threatened and endangered species and assist in their recovery (ESA Sec. 3 [3]), 50 CFR Sec. 402.02. A key function performed by environmental professionals, both within the Services and working with the Services, is to ensure this connection is made in permitting and consultation. Assurance methods related to ESA Section 7 are inventoried in this section. Standard ESA Section 7 Consultations Section 7(a)(2) of the ESA states that for any federal action that may affect a threatened or endangered species (or its habitat), the action agency must consult with USFWS or NOAA Fisheries to ensure that the federal action (1) is not likely to “jeopardize the continued existence of” an endangered or threatened species and (2) will not result in the “destruction or adverse modification” of the designated critical habitat of the listed species (16 U.S.C. Sec. 1536[a][2]). Such consultations are known as Section 7 consultations. The Endangered Species Consultation Handbook (U.S. Fish and Wildlife Service and National Marine Fisheries Service 1998) provides internal guidance and establishes national policy for conducting consultation and conferences pursuant to Section 7 of the ESA. The handbook addresses the major consultation processes, including informal, formal, emergency, and special consultations, and conferences. The process for managing Section 7 consultations for transportation projects is described in the FHWA Guidance Memorandum on Management of the Endangered Species Act (ESA) Environmental Analysis and Consultation Process (2002). Many of the tools described in this section, including the Endangered Species Consultation Handbook, specifically encourage the use of flexibility and innovation while coordi- nating during the Section 7 process. In a section directly addressing “Flexibility and Innovation,” the handbook notes that the “Section 7 process achieves greatest flexibility when coordination between all involved agencies and nonfederal representatives and the Services begins early. Biologists should be creative in problem solving and look for ways to conserve listed species while still accommodating project goals.” The handbook also addresses shortening time frames, noting that the Services have been implementing measures to stream- line consultation and that “biologists for the Services are encouraged to review examples of these streamlined consul- tations and to look for ways to incorporate streamlining tech- niques into other consultation procedures” (U.S. Fish and Wildlife Service and National Marine Fisheries Service 1998). Preconsultation Under ESA Section 7 Perhaps the most effective manner of streamlining the Section 7 consultation process is to engage the Services in preconsultation

42 during the planning phase. Preconsultation allows the action agency, in coordination with the Services, to assess the most appropriate method for ESA consultation (i.e., informal, formal, programmatic, or other) for the proposed action. During preconsultation, the Services can provide information regarding the species that might be present, the threats and conservation needs of the species within the area, potential con- flicts that may arise, and unique opportunities to further conservation and recovery. The Services and the transporta- tion agency can then work together to address these potential conflicts before the project design is set, while design flexibility may still exist, and while the maximum set of conservation or mitigation alternatives are available. During this process, trans- portation agencies have the option of addressing candidate as well as listed species and of seeking programmatic consultation on an ecosystem approach encompassing all species of concern. Closer to the time of project implementation, if the Services review the proposed action and find it to be consistent with the conservation strategy and design standards previously agreed to, a final BO can typically be issued in an expedited manner. Recovery Plans Section 7 consultations are informed either by species recovery plans or by recovery strategies or outlines when plans have not yet been developed or approved. In their Interim Recovery Planning Guidance, the Services state that [w]herever possible, recovery plans should focus on the broader view of the species’ health, by working to ensure the health of its habitat and ecosystem functions, rather than the narrower view of looking at the species only. As implied in the ESA, conserving the ecosystems upon which a species depends is more likely to ensure the species’ long-term viability. In keeping with the ESA’s directive, this guidance focuses not only on the listed species themselves but also on restoring their habitats as functioning ecosystems. (U.S. Fish and Wildlife Service and National Oceanographic and Atmospheric Administration 2004) The 2004 Interim Recovery Planning Guidance further notes that while single-species recovery plans have been the most common type of plan prepared since the enactment of the ESA, multispecies plans and ecosystem plans have gained increasing currency since the mid-1990s. The guidance states that It is important to note that, although the ESA appears to focus on the individual species, subspecies, or distinct population segments, the purposes of the ESA include conserving the eco- systems upon which listed species depend. Recovery plans should aim to address threats by restoring or protecting ecosystem functions or processes whenever and wherever possible. . . . (U.S. Fish and Wildlife Service and National Oceanographic and Atmospheric Administration 2004) USFWS and NOAA Fisheries are charged with developing and implementing recovery plans for the conservation and survival of species (ESA Sec. 3 [f]) and then using this infor- mation in the consultation process. Recovery-related resources that may be used in addition to actual recovery plans include the following: • Interim Endangered and Threatened Species Recovery Planning Guidance, Version 1.2 (National Marine Fisheries Service 2004, Section 5.1 updated 2007): This guidance stresses the importance of stakeholder input and the for- mation of partnerships in recovery planning. Valuable indicators of success are included that infrastructure and conservation partners can use in developing and evaluating the success of ecosystem efforts. • Five-year reviews: Five-year reviews may be an excellent source of the most recent rangewide information on listed species. A 5-year review is a periodic analysis of a species’ status conducted to ensure the listing classification of a species as threatened or endangered is accurate. It does not involve rulemaking; the review only recommends whether to change the species’ classification, thus indicating that a rulemaking may be necessary. • SLOPES: USFWS, in consultation with USACE, is developing procedures for improving coordination on projects that may affect listed species or critical habitats designated under the ESA. This has resulted in the creation of standard local operating procedures for endangered species (SLOPES), which provide a stepwise process to assist federal agencies, state, and local governments, as wells as individuals, in developing a determination as to the extent that a federal action will affect federally listed species or critical habitats. SLOPES also identifies options that may be available to avoid or minimize the effects of the action. From this process, modifications can be proposed which, if implemented, will protect listed species from activities that otherwise could be harmful. • Wildlife action plans: To receive federal funds through the State Wildlife Grants program, Congress charged each state and territory with developing a state comprehensive wild- life conservation strategy, or wildlife action plan. These plans set a vision and a plan of action for wildlife conservation and funding in each state (Association of Fish and Wildlife Agencies, State Wildlife Action Plans). • Watershed and ecoregional conservation plans: These plans have been developed by various nonprofit organizations. Among the most well-known, and based on Natural Heritage Program (NHP) data, are The Nature Conservancy’s Eco- regional Conservation Plans, available with coverage of all of the lower 48 states, and The Conservation Fund’s Green Infrastructure Plans.

43 FHWA Web-Based Biological Assessment Tool The FHWA web-based BA tool is an online resource to stream- line preparation and submittal of complete regular, non- programmatic BAs under ESA Section 7, for which FHWA is the lead federal action agency. The five priorities that drove development of the tool were • Streamline the BA development process by helping preparers develop complete and accurate BAs. • Reduce project delays associated with incomplete BAs and requests for additional information. • Expedite regulatory review and decision-making trans- actions. • Promote BA consistency (among states and projects), accountability, and administrative transparency. • Track BA development activities across the nation (Federal Highway Administration 2009). The tool does not facilitate programmatic approaches, but it offers support in many other areas to “demystify and expedite BA development, submittal and review,” including • Library, glossary, search, and FAQ resources; • Nationally standardized BA template with context-sensitive instructions; • Geographic contacts and resources; • Secure online file cabinets to improve coordination, collabo- ration, and administrative documentation; and • Geospatial, project archiving with posting, and searching functionality (Federal Highway Administration 2009). The tool’s online file cabinet saves time and facilitates the exchange of information among team members. The tool is self-explanatory and user friendly, outlining the highest or most detailed level of information likely to be required in a BA. In this manner, the tool tilts toward project-specific consultations developed after all design information is available. It does not yet offer a template for an ecoregional or programmatic approach. This lack does not mean that programmatic consultations are not allowed and encour- aged by the Services and FHWA; rather, it indicates that standardization and quality improvement for regular BAs were pursued first. Programmatic Section 7 Consultations How It Works Programmatic consultations are used to evaluate the potential for federal agency programs to affect listed species and desig- nated critical habitat. These programs guide implementation of the agency’s future actions by establishing standards, guidelines, or governing criteria to which future actions must adhere. Programmatic consultations address species, habitat, or project needs on a multiple-project scale, often addressing ecosystems as well as individual species. Consultation must, in the end, address impacts on, and have a nexus to, species individuals, but impacts can be addressed “by proxy” in terms of “all individuals associated with or dependent upon” a particular habitat area. Federal agencies are free to consult on programs, plans, or strategies, although consultation is optional prior to project development in the transportation process. In cases in which a federal agency adopts or approves a plan (e.g., a long-range transportation plan or a statewide transportation improvement program) or strategy that will be used to guide the develop- ment and implementation of future projects, a programmatic approach can be executed, involving two tiers of federal agency action. The first-tier action is to adopt the broad plan or strategy; second-tier actions involve implementing individual actions or projects that occur under the plan. FHWA does not typically consult on plans, but USFWS certainly can and is accustomed to doing so in other sectors. FHWA and DOTs have the option to include candidate species, as well as listed species, in a pro- grammatic Section 7 consultation. If future actions or species information are uncertain, Service staff project or estimate the potential effects of future actions in order to conservatively protect the species. Acres or other measures of impact are tracked as projects occur, and the baseline is updated as appropriate. Changing information on the status of the species is updated, as well. The Executive Order 13274 Integrated Planning Work Group advises devel- opment of a “landscape-scale perspective” to facilitate inventory of target resources using existing information and to deter- mine the status and trends of target resources and supporting ecosystem values. From this, a conservation strategy may be developed. Such a strategy enables more efficient and effective identification of fatal flaws, conservation needs, and partner- ship opportunities. Court cases over the past decade have upheld USFWS’ ability to conduct programmatic or “tiered” consultations (Buckeye Forest Council v. U.S. Forest Service, 04-259 [S.D. Ohio, Western Div., July 20, 2005]; Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 378 F.3d 1059 [9th Cir. 2004]; Pacific Coast Federation of Fishermen’s Associations v. National Marine Fisheries, No. 97-CV-775, 1998 WL 1988556 [W.D. Wash., May 29, 1998]). Lessons learned from those cases relevant to programmatic consultations may be summarized as follows (Pacific Coast Federation of Fishermen’s Associations v. National Marine Fisheries, No. 97-CV-775, 1998 WL 1988556 [W.D. Wash., May 29, 1998]; Pacific Coast Federation of Fishermen’s Associa- tion v. National Marine Fisheries Service, 71 F.Supp. 2d 1063 [W.D. Wash., 1999], Pacific Coast Federation of Fishermen’s

44 Association v. National Marine Fisheries Service, No. 99-36027 [9th Cir. 2001]): • Provide a rationale for watershed or landscape-scale analysis. • Aggregate the effects of site-specific actions when consider- ing regional-scale plans. • Analyze and verify whether site-specific projects are com- pliant with the conservation strategy and that mitigation actually occurs. Assess whether the appropriate elements of the plan’s standards and guidelines are being implemented. • Explain treatment of short-term effects and their potential to jeopardize listed species. • Consider resource conditions immediately postaction, not only 10 years in the future. • Do not disregard management plans that have already been developed or adopted for the species of concern, especially when binding standards or guidelines have been developed. • Show consideration of cumulative effects. Advantages and Disadvantages Landscape conservation and addressing climate change are USFWS priorities in conjunction with the strategic habitat conservation approach. USFWS leaders have noted that programmatic Section 7 consultations are a primary way to address these priorities. Programmatic consultation has been avoided in some cases due to the level of information available in planning. However, at the earliest stages of transportation planning, much is known that can be used as the basis of a programmatic BA and BO: • The location of transportation activities is known. All states know where the existing transportation network is located. In many states, this existing network and infrastructure (including off-system bridges) now receives over 99% of the state’s infrastructure investment. • The types of transportation activities occurring there are known; generic descriptions of transportation activities have been compiled by USFWS staff and DOT counterparts in the development of programmatic approaches in multiple states. • Species of concern (listed and other declining species) are often known or can be identified, and habitat associations and range can be drawn from known and readily available data or modeling (or in older programmatic cases, often the best professional judgment of USFWS, NGOs, and university scientists). According to the USFWS interim guidance on programmatic consultation, Programmatic consultation techniques have the greatest poten- tial to increase the efficiency of the Section 7 consultation process because much of the effects analysis is completed one time, up front rather than repeatedly each time a new action, or batch of actions, is proposed. By completing this analysis up front in a programmatic consultation document, the anticipated effects of the action agency’s future projects can be added into the environmental baseline before the project’s completion, providing predictability for action agencies as they can be assured that the effects of their future actions have already been broadly accounted for. Thus, all other future Section 7 consultations (i.e., those not covered by the programmatic consultation document) will be evaluated within the context of these effects having already been added to the environmental baseline. By completing this analysis up front, the process for completing consultation for future actions proposed under the programmatic consultation can be dramatically shortened. (U.S. Fish and Wildlife Service 2003) Types of Programmatic Approaches tiErEd aNd aPPENdEd ProgrammatiC CoNsultatioN aPProaChEs When there is insufficient information regarding individual future actions to complete a batched-programmatic consulta- tion, a tiered or appended programmatic consultation approach may be used. Both types of programmatic approaches involve the initial development of a programmatic BO that analyzes the potential effects of implementing the federal agency’s program, followed by the development of appropriate project-specific documentation that addresses the specific effects of individual projects that are proposed under the agency’s program. In the case of the tiered programmatic approach, the Service com- plete a project BO that tiers to the programmatic opinion. In the case of the appended programmatic approach, the Service produce project-specific documentation that is physically appended to the programmatic BO. Incidental take is not generally exempted at the program level for these two approaches, as there is typically insufficient project-specific information. Under the tiered approach, the project-specific BO will contain a stand-alone incidental take statement; under the appended approach, each specific project is appended to the program-level incidental take statement (the take exemption takes effect at the time that each specific project is appended to the statement). BatChEd-ProgrammatiC CoNsultatioN aPProaCh Though it is not the classic form of programmatic consultation, the batched approach is widely used. Under this program- matic consultation approach, the action agency groups, or batches, a series of proposed projects into one proposed action, and the Service produce a single BO or concurrence letter to fulfill the action agency’s consultation requirements. In effect, several individual consultations are combined into one document.

45 Considerable project-specific information is required for this approach. The design of each project is sufficiently devel- oped to accurately assess its potential effects and anticipated take, if any. Thus, the effects of each project are evaluated both individually and cumulatively within one document. This approach, although the most legally protective, is not always practical as it requires the action agency to have its specific future actions sufficiently developed to accurately evaluate their impacts. This approach can be used when there is sufficient information to exempt take at the program level, and no further project review is needed. For Oregon’s programmatic BA for bridge repair and replace- ment, agency representatives determined that a formal, stream- lined batched-programmatic Section 7 federal ESA consultation would be the most effective and efficient approach to envi- ronmental compliance for the Bridge Program. In contrast to a strictly programmatic approach, a batched-programmatic approach was deemed appropriate because the proximity, dis- tribution, duration, and disturbance frequency of the proposed action were known (these are formally recognized batched elements); and the timing, nature of the effect, disturbance, intensity, and severity are controlled through measures admin- istered throughout the Bridge Program (these are the program- matic elements) (U.S. Fish and Wildlife Service and National Marine Fisheries Service 1998). This consultation approach had been used in previous Section 7 consultations, such as the Wild- land Urban Interface Fuel Treatment batched-programmatic BA prepared by the Southwestern Region of the U.S. Forest Service (U.S. Department of Agriculture 2001). The Oregon DOT’s selection of a batched-programmatic consultation assured the Services that the level of effects analysis would provide the detail needed to adequately assess overall program impacts. This approach provided numbers of bridges, acreages of affected habitat, and species-specific effects analysis and enabled a “no jeopardy” determination under Section 7 of the ESA. Examples of Programmatic Section 7 Consultations, BAs, and BOs Several sample programmatic Section 7 consultations, BAs, and BOs were reviewed. Table 5.5 summarizes their essential features. The model programmatic consultation was developed for this project and is included in the Practitioner’s Guide, the third volume in this series. The template programmatic BA and BO combines basic elements of successful programmatic agree- ments that have been developed around the United States. It draws from approaches that have received awards within and outside of USFWS. The Colorado Field Office received an award from USFWS headquarters for the shortgrass prairie initiative, a 20-year advance mitigation programmatic BA–BO and conservation strategy for listed and nonlisted species, accompanied by on-site conservation measures for aquatic species. Example text from the Oregon Bridges batched BA–BO is also included. Both measures have also received environmental excellence awards from FHWA. The range of actions, geographic scale, habitats, and species covered by a programmatic agreement can vary widely; thus, the complexity of a programmatic agreement can increase as it includes multiple actions over a large area and adverse effect determinations with incidental take. For those transportation agencies with little or no programmatic agreement experience, the template offers an approach that is achievable with a level of data all states and DOTs generally have. The sample lan- guage is provided in plain English (avoiding legalese) as guid- ance to exemplify the nature and scope of each section of the agreement. Conservation Banks How It Works USFWS describes a conservation bank as a parcel of land containing natural resource values that are conserved and managed in perpetuity for listed species and is used to offset impacts occurring elsewhere to the same resource values (i.e., in-kind mitigation) (U.S. Fish and Wildlife Service 2003). Conservation banks are established for the long-term pro- tection of a specific species that is affected on a project’s site. They enable large, contiguous areas of habitat to be preserved, restored, created, or enhanced to compensate for impacts on species and their habitats. Conservation banking differs from wetland banking in that the goal is not to replace the functions and values of the habitat, but to employ a broader concept of offsetting adverse impacts or providing net benefits to the species as a whole, rather than individual members of that species. Conservation banks may be established on tribal, state, local, or private lands. The value of the natural resources within a bank’s lands is translated into credits and may vary by habitat type or management activities. Some of the biological criteria used when determining credit values may include habitat quality and quantity, species covered, conservation benefits, property location and configuration, and available or pro- spective resource values (U.S. Fish and Wildlife Service 2003). USFWS affirms preservation of existing habitat with long-term conservation value as an appropriate target of conservation banks; such investments can offset the loss of isolated and fragmented habitat that may have little long-term value to the species. The price for bank credits typically includes funding for acquisition and long-term natural resource protection and management. Conservation banks must be approved by USFWS and the state agency responsible for protecting state-listed species.

46 Table 5.5. Sample Programmatic Section 7 Agreements, Biological Assessments, and Biological Opinions State Title Year Agencies Proposed Action Action Area Species Covered Incidental Take Mitigation–Compensation California Programmatic Formal Endangered Species Act Consultation on Issuance of 404 Per- mits for Projects with Relatively Small Effects on Listed Ver- nal Pool Crustaceans within the Jurisdiction of the Sacramento Field Office, California 1996 USFWS USACE Any action under review by USACE that meets the conditions of the agreement. Actions are limited to projects “involving relatively minor impacts”; however, this is not defined. 20 counties Conservancy fairy shrimp, longhorn fairy shrimp, vernal pool tadpole shrimp, vernal pool fairy shrimp. Unknown number of covered species and their cysts and up to 50 acres of their habitat in each of 20 counties. Required preservation component, either on- site or in “ecosystem preservation bank.” Also requires creation either on-site or in habitat miti- gation bank. California Programmatic Biological Opinion on the Effects of Minor Transportation Projects on the San Joaquin Kit Fox, Giant Kangaroo Rat, Tipton Kangaroo Rat, Blunt- nosed Leopard Lizard, California Jewel flower, San Joaquin Woolly- threads, Bakersfield Cactus, and Recom- mendations for the San Joaquin Antelope Squirrel 2004 USFWS California Department of Transportation (Caltrans) Repair, rehabilitation, maintenance, and other routine activi- ties related to the operation of the California State Highway Transpor- tation System. USFWS reviews proposed project to determine if project is appropriate to append to program- matic BO or needs individual BO. Within 1,000 feet of Caltrans road- ways in 10 coun- ties; also within 1,000 feet of Caltrans stock- piles, access, and borrow site locations in these 10 counties. San Joaquin kit fox, giant kangaroo rat, Tipton kangaroo rat, blunt-nosed leopard lizard, California jewelflower, San Joaquin woolly- threads, Bakersfield cactus, San Joaquin antelope squirrel. San Joaquin kit fox– 880 acres; blunt- nosed leopard lizard–760 acres; giant kangaroo rat– 710 acres and 2 individuals; Tipton kangaroo rat–630 acres and 2 individuals. Land acquisition for newly disturbed habitats within same county where project occurs (unless otherwise approved by USFWS). Wildlife crossings for kit fox at 0.25-mile intervals. Colorado Colorado Central Short- grass Prairie Initiative Memorandum of Understanding and Programmatic Biolog- ical Opinion 2003 USFWS Colorado DOT FHWA Colorado Department of Natural Resources and Division of Wildlife The Nature Conservancy Colorado Natural Heritage Program All construction and maintenance activities on the existing right-of-way and existing bridges (on or off system) in the eastern third of the state, over a 20-year period. Eastern third of the state (shortgrass prairie ecoregion), including the state’s most- and least-populated areas. 36 species including the bald eagle, bur- rowing owl, Cassin’s sparrow, ferruginous hawk, lark bunting, lesser prairie chicken, loggerhead shrike, long-billed curlew, McCown’s longspur, mountain plover, black-tailed prairie dog, Massa- sauga rattlesnake, Texas horned lizard, western box turtle, Arkansas River feverfew, pueblo goldenweed, round- leaf 4-o’clock. Anticipates incidental take of bald eagle will occur through permanent or tem- porary loss of food and cover habitat. Calculated 3,688 acres maximum potential loss of habitat. Acquired and preserved a minimum of 15,160 acres of habitat (1:1 ratio of potential impact to miti- gation acres). Contracted with The Nature Conser- vancy and Colorado NHP to identify and manage mitigation lands. (continued on next page)

47 Ohio Programmatic Agree- ment for the Ohio Pro- grammatic Biological Opinion–Department of Transportation’s Statewide Transporta- tion Program and its effects on the Indiana Bat 2007 USFWS FHWA Ohio DOT Continuing imple- mentation of Ohio DOT’s statewide transportation pro- gram, including current and future road construction and maintenance projects over a 5-year period (2007–2012). Statewide Indiana bat Anticipate no more than 15 takes each year for 5 years (total = 75 takes). Anticipates up to 22,118 acres of suitable Indiana bat habitat will be removed due to projects over the 5-year period. (1) Protection of land/ habitat through conser- vation easement or deed restriction; (2) protection/ restoration of riparian for- age areas; (3) protection/ restoration of forested wetland foraging areas; (4) tree planting to create future suitable habitat, travel corridors, and restore connectivity of habitat; (5) invasive species plant control; (6) mist-nest surveys on public land to refine knowledge of suitable habitat areas (research bank). Oregon Programmatic Biological Opinion–Oregon Department of Trans- portation’s OTIA III Statewide Bridge Delivery Program 2004 USFWS NOAA Fisheries FHWA USACE Oregon DOT Repair and replacement of 430 bridges. Statewide 3 mammals 4 birds 9 fish 2 invertebrates 9 plants Take of fish species quantified by (1) number of indi- viduals handled and mortality; and (2) permanent and temporary area (acres) and length (feet) of riparian vegetation. dis- turbance. Acres of habitat removal, acres of harass- ment, and number of known nests used for terrestrial wildlife. As of the BO date, specific methodologies for devel- oping conservation prior- ities, refining estimates of impacts, and identifying and targeting appropriate mitigation actions were under development. Oregon DOT will estab- lish a network of habitat management areas dis- tributed across various ecoregions of the state. Table 5.5. Sample Programmatic Section 7 Agreements, Biological Assessments, and Biological Opinions (continued) State Title Year Agencies Proposed Action Action Area Species Covered Incidental Take Mitigation–Compensation

48 Conservation banks must remain under active management in perpetuity and can be either privately or publicly owned. In each case, the bank operator is allowed to sell credits to infrastructure agencies needing to satisfy legal requirements to compensate for their projects’ environmental impacts. When an agency buys conservation bank credits, the entity that owns the bank is making that guarantee when it is permitted by the USFWS and when it sells the credit. The price of the credit covers the guarantee. The Guidance for the Establishment, Use, and Operation of Conservation Banks provides a collaborative, incentive-based approach to endangered species conservation that can aid in species recovery (U.S. Fish and Wildlife Service 2003). Advantages and Disadvantages rElEasE oF liaBility Once credits are purchased from a bank, a DOT is no longer responsible for ensuring the success of the conservation action effort. That responsibility is placed in the hands of the bank site’s developer, who is likely much better suited to managing conservation lands than is the DOT. This differs from the situation in which a DOT acquires and/or performs conser- vation actions and remains responsible for ensuring success of the conservation activity. usE oF CrEdits For multiPlE sPECiEs Credits may be bought, sold, or traded for the purpose of offsetting adverse impacts of federal, state, local, or private activities. However, conservation credits may only be exchanged for debits resulting from projects that affect a species specifically covered by the bank. In some instances, a conservation bank may contain habitat that is suitable for multiple listed species. When this occurs, it is important to establish how the credits will be divided. Credits from a conservation bank may be used to compensate for impacts of activities regulated under Section 7 or Section 10 of the ESA, as well as environmental impacts authorized under other programs (e.g., NEPA and state or local regulatory programs). For this application, the same credit may be used to compensate for an activity that requires authorization under more than one program; however, the same credit cannot be used to compensate for more than one activity (U.S. Fish and Wildlife Service 2003). As a general rule, overlapping multiple species credits is acceptable for a single project, but not multiple projects (U.S. Fish and Wildlife Service 2003). The Florida DOT Platt Branch Conservation Bank provides an example of this approach. Under the terms of the original MOU with USFWS and the Florida Fish and Wildlife Conser- vation Commission, the bank provided Florida DOT with conservation credits for three listed species. In 2006, the MOU was revised to allow additional state and federally listed species to be covered by the bank. Florida DOT has approxi- mately 688 hectares (1,700 acres) in the upland mitigation bank, which is used to offset project impacts for 27 state- and federally listed species in a 15-county service area. FHWA reimburses the Florida DOT when credits are used for specific transportation projects. A trust fund was established with the Florida Fish and Wildlife Conservation Commission for per- petual management and maintenance of the habitat for listed species. Improvements that result in higher listed species populations result in increasing available credit. An inventory is taken every 5 years to document population status. ProtECtioN oF viaBlE PoPulatioNs, imProvEd ChaNCEs oF suCCEss, aNd rEduCtioN oF FragmENtatioN It is important to site conservation banks in areas where viable communities can be preserved, where fragmentation of habitat can be reduced, and where management measures can address other threats that a species might encounter, including invasion of nonnative species or disruption of natural disturbance regimes. Species recovery plans, state conservation plans, and ecoregional plans developed by third-party conservation organizations may contribute goals, objectives, and target conservation areas for conservation banking. grEatEr EFFiCiENCy aNd PrEdiCtaBility as dEsiraBlE oFFsEts arE sECurEd Conservation banking reduces the piecemeal approach to conservation efforts that can result from individual projects by establishing larger reserves and enhancing habitat connectivity. Directing smaller individual mitigation actions into a bank streamlines compliance for the individual permit applicants or project proponents while providing a higher benefit to the target resources. Conservation banking brings together finan- cial resources and the planning and scientific expertise not practicable for smaller conservation actions. By encouraging collaborative efforts, it becomes possible to take advantage of economies of scale (both financial and biological); funding sources; and management, scientific, and planning resources that are not typically available at the individual project level. usE oF CrEdits For ClEaN WatEr aCt mitigatioN According to the USFWS conservation banking guidance, credits from a conservation bank may be used to compensate for environmental impacts authorized under other programs, such as CWA Section 404. For example, wetland mitigation banks in south Florida are authorized by USFWS to “bundle” credits for panther habitat mitigation (i.e., panther habitat units) with the wetland credits. If impacts occur on the same acre, with multiple species or resource values, resources that pro- vide similar crosscutting values elsewhere might be conserved at one location, so that multiple acres in multiple locations are not required for a unitary impact.

49 Examples East Plum CrEEk CoNsErvatioN BaNk, Colorado Three bridge projects were proposed that would cross East Plum Creek in Colorado. Establishing the bank was seen as cheaper than case-by-case mitigation, and it would also provide an opportunity to create a larger habitat area. Conservation credits for the bank were established for meeting success criteria in different areas. There were 6.32 credits certified at bank establishment to reflect the conservation easement and the initial habitat restoration activities that took place. Achieving success criteria for maintaining alluvial groundwater levels would release 12.65 credits. Achieving success criteria for habi- tat vegetation would release 3.80 credits. Achieving success criteria for the Preble’s meadow jumping mouse based on presence and population density would release 2.53 credits (National Oceanic and Atmospheric Administration 2003). CaroliNa hEElsPlittEr CoNsErvatioN BaNk The Carolina Heelsplitter Conservation Bank is dedicated to preserving, enhancing, and restoring key parcels of land in target watersheds with viable populations of the federally endangered Carolina heelsplitter mussel. The bank offers a creative, landscape-scale solution to the preservation and recovery of this rare and endangered mussel species. The service area of the bank includes watersheds with known popula- tions of the Carolina heelsplitter mussel in North and South Carolina. Credits may be purchased from the bank and used to offset mitigation requirements associated with the Carolina heelsplitter mussel with the approval of federal, state, and/or local agencies. The initial phase of the Carolina Heelsplitter Conservation Bank encompassed approximately 810 acres of land. The bank will incorporate a trust fund to support the ongoing research and surveying efforts to provide long-term protection and reestablishment of the endangered Carolina heelsplitter mussel, along with an endowment fund to protect, manage, and monitor the land in perpetuity (Environmental Banc and Exchange 2009). Recovery Credits How It Works Recovery credits were introduced by USFWS in November 2007 as an additional conservation tool to aid federal agencies in meeting their ESA obligations to conserve listed species. Similar to a conservation bank, a recovery credit system (RCS) allows federal agencies to bank credits in advance of anticipated impacts on threatened and endangered species and their habitat and its functions. Unlike a conservation bank, recovery crediting encourages federal agencies to partner with private and nonfederal landowners to accrue credits through mutually beneficial conservation agreements that may be in perpetuity (easement or fee title purchase) for permanent impacts or that may address temporary construction impacts through nonperpetual easements. Also, unlike a conservation bank, the RCS requires the combined effects of both adverse and benefi- cial actions to achieve a net benefit to the recovery of the species. “Net benefit to recovery” is defined as the enhancement of a species’ current status by addressing the threats identified at the time of listing or in a current status review. A federal agency may develop and store credits to be used at a later time to offset particular adverse effects of its actions. The Service reviews each RCS to ensure the net conservation benefits outweigh any potential impacts that could occur during project implementation. Each proposal is evaluated on its own merit, and some activities related to particular listed species may not be appropriate for the new credit system (Harrelson 2008). Advantages and Disadvantages The goal of an RCS is to enhance the ability of federal agencies to promote the recovery of listed species on nonfederal lands and offset adverse effects to listed species from proposed actions. Potential benefits of an RCS include the following (Harrelson 2008): • Better and more cost-effective integration of recovery with agency activities; • Streamlined ESA Section 7 consultation; and • Increased predictability for federal action agencies and private landowners. Examples of RCS The first application of the RCS was in Texas, where the U.S. Army and the Fort Hood Military Reservation banked credits for conservation actions conducted on private lands to offset impacts on endangered golden-cheeked warbler habitat. Another example illustrates the value of avoiding piece- meal approaches to endangered species conservation. FHWA and Arkansas Highways initiated a pilot project to establish a market-based system (Habitat Credit Trading) to address Section 7 of the ESA requirements for transportation projects on a local scale. The particular project application was Arkansas State Highway 18, connecting the city of Jonesboro and other townships in northeast Arkansas to I-55. The federally endan- gered fat pocketbook mussel (Potamilus capax) occurs in streams adjacent to private lands within the project area downstream of USACE water control structures that drain Big Lake National Wildlife Refuge. It was determined that “the relationship between cost per credit and credits generated becomes increas- ingly favorable as the RCS site size increases” and further, that “the proposed debiting framework provides an efficient ratio

50 which is likely to cause development entities to evaluate project alternatives prior to impacting threatened and endangered species and their habitats” (Peck et al. 2009). Habitat Conservation Plans How It Works Permits (e.g., incidental take permits) can be issued under ESA to allow the take of endangered or threatened species under certain circumstances. The permit applicant must have a habi- tat conservation plan (HCP) approved before an incidental take permit can be issued. HCPs are prepared by the permit applicant and identify specifically how the applicant is going to avoid, minimize, and mitigate the take of any threatened or endangered species that may result from their actions. USFWS reviews the HCP and decides whether to issue the incidental take permit. Nationwide, there are more than 675 HCPs in effect covering nearly 600 species on approximately 42 million acres (U.S. Fish and Wildlife Service 2011). Advantages and Disadvantages The primary disadvantage of an HCP for state transportation agencies is that nearly all of their capacity projects are federally funded and thus require Section 7 consultation. Section 7 compliance with preparing an HCP is not an option. Despite these limitations, HCPs offer an outstanding example of how to accomplish multispecies, and often multiresource, conservation on an ecosystem basis. The existence of an HCP can greatly facilitate advance or programmatic conservation measures. Nevada, Wisconsin, and California provide good examples of a DOT contributing to implementation of an HCP and receiving coverage under Section 10 for state actions or Section 7 for federal actions, if combined with a consultation. Example of a Habitat Conservation Plan NiSource in Indiana is a natural gas distribution company that is seeking an incidental take permit for the take of threatened and endangered species that may result from their routine operation and maintenance activities. The company operates a 17,500-mile network of interstate nat- ural gas pipelines across 17 states. Routine operation and maintenance includes repairing, upgrading, replacing, and expanding pipelines and associated infrastructure. These activities are sometimes in or near endangered or threatened species habitat and thus could result in taking a listed species. NiSource is currently developing an HCP in conjunction with its application for a permit. The permit would cover all pipeline work within a 1-mile-wide corridor (0.5 mile on either side of the centerline of the pipe) that might result in take of a listed species. Each year, NiSource undertakes approximately 400 proj- ects across its natural gas pipeline system to repair, upgrade, replace, and expand its natural gas infrastructure. According to NiSource, these projects are almost always located in areas that trigger ESA compliance requirements under Section 7. NiSource maintains that although their work has a temporary, and for the most part, negligible impact on listed species and their habitats, compliance with the ESA under Section 7 car- ries a significant budgetary and administrative burden for the company, USFWS, and numerous other federal agencies with regulatory authority over NiSource activities. In 2005, NiSource approached USFWS to explore the feasibility of developing a multistate MSHCP that would provide conservation benefits to federally listed species and accommodate future construction, operation, and maintenance of NiSource natural gas pipelines and ancillary facilities. NiSource and USFWS agreed that efforts to develop an MSHCP and issuance of an incidental take permit under Section 10(a) (1)(B) of the ESA represented the best approach for harmo- nizing the conservation needs of threatened and endangered species with the regulatory compliance obligations of NiSource. The approach would seek to integrate NiSource’s natural gas pipeline activities with the conservation and recovery goals of listed species, reducing conflicts between listed species pro- tection and economic development and streamlining ESA consultation procedures among a variety of agencies. Three key issues reflected uncertainties and questions: (1) no applicant had ever attempted to develop an MSHCP on such a large scale; (2) the NiSource activities to be imple- mented, and where and when they would be implemented, were unknown; and (3) the amount of take and methods for calculating take were uncertain. NiSource and its consultant developed matrices on the activities the pipeline work entailed, where species breed and feed, and the relation of these factors to the landscape and impacts. They produced a threats analysis of the activi- ties, identifying particular stressors the activity could have on the species, and then filled out activities likely to occur in any given location and the duration of those activities. From this, NiSource and USFWS generated an estimated amount of take for each species. Next, they looked at the effects analysis, including the impacts of the current and anticipated take on the species; decided what measures would avoid and minimize impacts on the species; and then considered what NiSource would need to mitigate. NiSource also agreed to implement their BMPs all the time and to avoid highly sensitive areas for imperiled species in new construction (U.S. Fish and Wildlife Services, NiSource Habitat Conservation Plan).

51 Candidate Conservation Agreements with Assurances How It Works Candidate conservation agreements (CCAs) are formal agree- ments between the Services and one or more parties to address the conservation needs of proposed or candidate species or species likely to become candidates. The participants volun- tarily commit to implementing specific actions that will remove or reduce the threats to these species, thereby contributing to stabilizing or restoring the species so that listing is no longer necessary. Candidate conservation agreements with assurances (CCAAs) commit those bound by the agreement to a package of voluntary conservation measures that the Services believe will contribute tangibly to the recovery of the species. In exchange, the party or parties to the agreement receive assurances from the Services that additional conservation measures will not be required should the species become listed in the future. A CCAA must include • A description of the population levels (if available or deter- minable) of the covered species existing at the time the parties negotiate the agreement; the existing habitat char- acteristics that sustain any current, permanent, or seasonal use by the covered species on lands or waters owned by the property owner; and/or the existing characteristics of the property owner’s lands or waters included in the agreement that support populations of covered species on lands or waters not on the participating owner’s property; • A description of the conservation measures that the property owner is willing to undertake to conserve the species covered by the agreement; • An estimate of the expected conservation benefits as a result of conservation measures (e.g., increase in population num- bers, enhancement, restoration, or preservation of suitable habitat; removal of threats) and the conditions that the property owner agrees to maintain; • Assurances that the Services will not require additional conservation measures or impose additional take restrictions beyond those agreed to if a covered species is listed in the future (for DOTs, this assurance would need to apply to future consultation requirements and “reasonable and pru- dent measures” required in incidental take statements); • A monitoring provision that may include measuring and reporting progress in implementation of the conservation measures described above and changes in habitat conditions and the species’ status resulting from the measures; and • A notification requirement to provide the Services or appropriate state agencies with a reasonable opportunity to rescue individuals of the covered species before any authorized take occurs. Advantages and Disadvantages CCAAs are intended for nonfederal entities (U.S. Fish and Wildlife Service and National Marine Fisheries Service 1999). Although state DOTs and other state agencies are ostensibly eligible for CCAAs, the federal funding for transportation projects necessitates Section 7 consultation. State transportation agencies and the private conservation organizations with which they may partner in the develop- ment of conservation agreements are clearly nonfederal entities and thus eligible for assurances when they treat candidate species as if they were listed and design and implement con- servation measures that contribute to their recovery. However, the assurances of value and interest to state DOTs relate to incidental take statements under Section 7 of the ESA rather than incidental take permits under Section 10. Conservation benefits may include reduction of habitat fragmentation rates, restoration or enhancement of habitats, increase in habitat connectivity, maintenance or increase of population numbers or distribution, reduction of the effects of catastrophic events, establishment of buffers for protected areas, and areas to test and develop new and innovative conservation strategies. Recognizing that while a species is a candidate, and a property owner is under no obligation to avoid take, the assessment of benefits would include consideration for what the property owner agrees not to do as well as any enhancement measures he or she agrees to undertake. If the Services and the property owner cannot agree on what con- stitutes benefits, the Services would not enter into the agreement. CCAAs are subject to a strict beginning baseline, below which losses cannot occur; this is one reason this vehicle is not fre- quently recommended. Example of a CCA In Idaho, efforts have been made to use CCAs and CCAAs to avoid the need to list additional species and provide direct beneficial effects for species. Slickspot peppergrass (SSPG; Lepidium papilliferum) is an annual or biennial white flower thought to occur only in southern Idaho. SSPG was inter- mittently designated as a candidate species under ESA for over a decade. In early 2003, the state Office of Species Conservation was made aware that USFWS believed that an endangered listing was appropriate based on the information available and that significant changes in land use would result from this listing. Through negotiation by interested parties including the Office of Species Conservation, Idaho Department of Fish and Game, Idaho National Guard, Idaho Bureau of Land Man- agement, and a consortium of ranching interests, efforts were made to avoid listing of the species through development of

52 a CCA. In July 2003, USFWS delayed their listing decision by 6 months to allow completion of the CCA and resolution of some final issues. USFWS and NOAA’s Policy for Evaluation of Conservation Efforts was applied as a guideline for the development of this CCA; this was the first application of this policy for CCA development. Conservation measures prepared to address each threat to SSPG were included in the CCA. A USFWS-facilitated scientific review panel validated conclu- sions reached by the SSPG partnership and found that the CCA would substantially delay risks of extinction of SSPG. In January 2004, USFWS issued a determination that the proposal to list SSPG was not warranted because of the management plans developed and instituted under the CCA, a win-win solution for all parties to the agreement and for the species (Inghram 2005). Commitment tracking Methods In addition to the assurance methods described in this section, there is another group of methods that can be described as com- mitment tracking methods. Commitment tracking methods help DOTs assure that commitments and informal agreements made to the resource agencies are implemented. Guidance issued by the Council on Environmental Quality (CEQ) in 2011, Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact, further emphasizes the need for agencies to adhere to environmental commitments, monitor the effectiveness of mitigation, and make that information publicly available (Council on Environmental Quality 2011). Typically, com- mitments are recorded in permit or consultation documents, but they need to be effectively conveyed from planning or project development departments within the DOT to construc- tion and maintenance. Commitment tracking mechanisms used by DOTs were evaluated in a recent National Cooperative Highway Research Program (NCHRP) report, Compendium of Best Practices for Incorporating Environmental Commitments into Transportation Construction and Maintenance Contract Documents (Venner and Paulsen 2009). That report should serve as a useful resource of methods that help to provide assurance that conservation and mitigation commitments made early in planning are kept.