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

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53 C h a p t e r 6 Many of the assurance and commitment tracking methods described in Chapter 5 may be used at the ecosystem scale. This chapter describes the limits of and approaches for applying these methods at the ecosystem scale. Limits of Using Methods at an ecosystem Scale Reluctance to Use a Habitat Approach There has been some reluctance to use habitat acres as a sur- rogate for species impacts. Although habitat is not a limiting factor for some species of concern, it is for the vast majority, and there is growing recognition of the value of habitat- and ecosystem-based approaches in recovery and conservation planning. Much has changed in the last 5 to 10 years. National Wildlife Federation v. Babbitt upheld a habitat approach, and now USFWS is advocating strategic habitat conservation and landscape-level conservation, including landscape conserva- tion cooperatives that will try to fill data gaps to enable these conservation approaches to be used more easily. USFWS is also integrating recovery planning, with its greater habitat and ecosystem conservation approach, with ESA Section 7 consultation. Need for Protection of Priority Site Before Permit or Consultation Is Finalized Often the very highest conservation priority areas face sig- nificant and urgent threats from development or destruction. In some cases, destruction or the loss of the parcel for conser- vation purposes is an imminent threat during the time before the Section 404 permit or the programmatic consultation can be completed. Still, DOTs may not be able to secure the site until the regulatory agency can provide written confirmation that the site is desirable for its conservation or restoration values and, most of all, that the site will qualify as an acceptable mitigation or offsetting measure for ESA Section 7 consulta- tion or CWA 404 review. Reluctance to Presume Presence of Species At times, some USFWS staff have been reluctant to assume a species is present and to overestimate impacts, primarily as a result of the Arizona Cattle Growers Association v. United States Fish and Wildlife Service decision; however, as the court identified, the threshold for USFWS to clear in terms of evidence of impacts is very low. The agency should dem- onstrate that a species is or could be in an area before regu- lating it and must establish a causal connection between the land use being regulated and harm to the species in question; mere speculation as to the potential for harm is not sufficient (Arizona Cattle Growers Association v. United States Fish and Wildlife Service, No. 99-16102, 273 F. 3d 1229 [9th Cir. 2001]). In Arizona Cattle Growers, the court held that USFWS would have to demonstrate that a “take” of protected species was “reasonably certain to occur”; however, this was a case in which the regulated party objected to broader estimation of potential presence. This is the opposite of the situation for state DOTs, which would have an interest in reasonable esti- mation of presence so they can proceed with earlier envi- ronmental decision making and ecological approaches to mitigation. Uncertainty and Insufficient Information When developing an effects analysis and associated inciden- tal take statement that includes future actions for which insufficient information is available to make accurate deter- minations (e.g., when consulting at the plan level and the specific combination of future activities and locations is not yet identified), the Services must provide the benefit of the Using Assurance and Commitment Tracking Methods at an Ecosystem Scale

54 doubt to the species and develop reasonable projections of potential conflicts between activities that can occur under the agency’s program and the protection of listed species. From these projections, the Services must estimate the potential effects and derive the anticipated level of inciden- tal take that is likely to occur, corresponding to the maxi- mum level of impacts that may be caused by the action (Conner v. Burford, 848 F.2d 1441; Silver v. Babbitt; Silver v. Thomas). The Service has called this “reasonable worst case assumptions.” USFWS allows for the times when “uncertainty regarding the potential effects of future actions developed through implementation of the action agency’s program may be so great that it is not possible to accurately project the potential effects that may result. To address these situations the Ser- vices should work with the action agency to jointly develop ‘assumptions’ that will be used to constrain the effects analy- sis” (U.S. Fish and Wildlife Service 2003). Concern Over Nonregulated Resources An ecosystem approach means that nonregulated resources will often be protected in the process of regulatory compli- ance for regulated resources. With regulatory agency input, transportation agencies can include offsetting measures in their proposal or project description. Those activities then become an intrinsic part of the proposed action. Implementation of Mitigation and Conservation Measures Implementing required conservation or mitigation is less an issue than it may first appear; advance conservation and mitigation assure the action in fact occurs. If it is not accept- able and implemented, no permit is issued and the project stops. Consultation and mitigation that occur on the plan- ning level have the advantage of being implemented and potentially evaluated years before a transportation improve- ment is built. How DOTs manage mitigation commitments is very important for agency relationships and DOT credibility. To date, environmental commitments on the planning level are a relatively new concept. They have not yet been incor- porated into DOT environmental commitment tracking systems, which have primarily focused on assuring com- mitments are covered in design and construction. Some of the typical challenges and needs for DOT commitment tracking systems are compiled in the NCHRP report Asset Management of Environmental Mitigation Features (Venner et al. 2009). approaches for Using Methods at an ecosystem Scale Implement Best Practices for Using Commitment Tracking Systems Commitment tracking systems are emerging as ways to track smaller commitments of DOTs (i.e., those commit- ments outside of the off-site, off-system conservation and mitigation that are the main focus of this project and report). In Best Practices of Incorporating Environmental Commit- ments into Contracts, WSDOT reported conclusions from an evaluation of their own commitment tracking system. They concluded that, although regions used a variety of different methods to track commitments, all generally did a good job. The study found that violations or shortfalls were not related to insufficiencies with commitment tracking or communica- tion. Approaches for further improvement included continu- ation of common practices, including • Extract permit conditions into contract provisions or plan details, in addition to attaching the permit as an appendix of the contract. • Enhance standard specifications and general special provi- sions to address common permit conditions. • Work with resource agencies to clarify and standardize per- mit language. • Recognize that environmental compliance has a cost to the DOT that cannot be deferred to the contracting agency (Washington State Department of Transporta- tion 2008). These and other approaches to support commitment track- ing and follow-through at DOTs are described in the NCHRP report Compendium of Best Practices for Incorporating Envi- ronmental Commitments into Transportation Construction and Maintenance Contract Documents (Venner and Paulsen 2009). In general, the more systematic the process is and the more tools are developed to support it, the more robust and reliable the process tends to be. Show How Avoidance and Minimization Occurred in Planning Transportation agencies should develop and document avoid- ance and minimization measures at every stage of the project, from planning through permitting. As many have pointed out, the greatest avoidance can be achieved in planning, when routes are not yet firmly established and projects have yet to be budgeted.

55 To respond to agency regulations, successful approaches to advance mitigation must demonstrate avoidance and mini- mization; in particular, • Project-level practicable alternatives analysis for those with individual permits (40 CFR Sec. 230.10[a]); and • Avoidance and taking “appropriate and practicable steps . . . which will minimize potential adverse impacts of the dis- charge on the aquatic ecosystem” (40 CFR Sec. 230.10[d]). North Carolina DOT has effectively dealt with these issues by ensuring project-by-project reviews for individually permitted actions, but in a programmatic context. USACE concurs with purpose and need, alternatives, selection of alternatives, and then minimization of impacts and a deter- mination of whether on-site mitigation is practicable and environmentally beneficial. North Carolina’s EEP is used for compensatory mitigation only after these steps. States have taken pains to preserve the sequencing process in many advance mitigation efforts. In the Washington State and North Carolina programs, USACE and EPA always reserve the right to say that use of a bank or advance mitiga- tion is not appropriate. Likewise, the Caltrans–FHWA MOA on early mitigation planning commits that When an individual transportation project for which a miti- gation strategy was developed is undergoing preliminary design and environmental studies, an evaluation will be made to determine if all appropriate avoidance and impact minimi- zation measures have been incorporated. Caltrans will request concurrence from the resource agencies in this evaluation. If concurrence is granted, then the compensation plan as agreed upon in the Agreement of Mitigation Strategy will be the basis for offsetting the remaining unavoidable impacts. (Caltrans and Federal Highway Administration 2003) GIS and commitment tracking systems are enabling DOTs to do more documentation and quantification of how they are avoiding and minimizing impacts throughout the trans- portation planning, development, design, and construction process. Texas DOT has gone through a process of demon- strating avoidance and minimization on the planning level and NEPA Tier I for the I-69 corridor to preserve the sequencing process and consider compensatory mitigation opportunities. For both ESA and CWA concerns, illustrating how and where avoidance and minimization occur in the process can allay concerns. Developing and applying BMPs or standards to be met on a programmatic basis helps achieve avoidance and minimization. Address Mitigation and Conservation Risk Factors Understanding the risk factors and planning to address them can reduce the uncertainty associated with mitigation and conservation. Risk factors and considerations to address them were identified in a working paper to support the Willamette Partnership in Oregon. The factors identified in that paper are summarized in this section and in Table 6.1 (Willamette Partnership 2009). Table 6.1. Environmental Mitigation and Conservation Risk Factors Risk Factor Description Quality of the original site (locally and for broader landscape) If a site and its adjacent land cover meet a certain set of criteria (e.g., low-invasive cover, adjacent to natural lands, located in a priority area), they are more likely to produce lasting ecological value. Suitability of the restoration design If a site is restored to historic or reference conditions, it is more likely to reach its site system potential. Qualifications of the land manager and/or restoration practitioner If a manager or practitioner has experience, capacity, and a restoration mission, he or she is more likely to deliver a successful restoration project. Timing of credits related to impacts Credits created after an impact has occurred increase temporal loss of function and create a risk that functions lost may not be replaced if the restoration does not perform as planned. Credits released before performance standards are reached increase the risk that the project may never meet these standards. Known effectiveness of development and conservation action The response of ecosystems to some human actions is much better understood than others. Wetland restoration generates more predictably measurable benefits than wetland creation. Long-term management (plan, person, and funds) Sites that are protected with long-term leases or easements, have money set aside for management, and have someone in charge of them are more likely to sustain their benefits.

56 Considerations to address the risks identified in the working paper for the Willamette Partnership include • Additionality: All credited projects need to demonstrate they provide “additional” conservation benefits. The addi- tionality requirement ensures credits are awarded for doing more than what would otherwise have happened. • Minimum quality standards: Projects that generate credits need to meet minimum standards of quality. Quality stan- dards help save time and money by ensuring good site selection and project design. • Service areas and other site selection or eligibility criteria and requirements: Eligibility criteria are designed to exclude overly risky or inappropriate projects. Design qualifications may be set as a type of eligibility requirement, such as target species, habitat elements, and diversity. Strict eligibility cri- teria generally lead to fewer conservation or restoration projects; however, the likelihood of success may increase. • Baseline assessment, monitoring, and reporting: Verification answers two general questions: (1) are mitigation project developers complying with rules and procedures? and (2) is the site achieving the required performance measures?