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

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

57 C h a p t e r 7 This research effort identified various gaps between the eco- logical approach, real-world opportunities, and available implementation methods. The gaps are related to policy, technical, and institutional factors. The Integrated Ecological Framework (IEF), the analysis reported in this three-volume series, and subsequent work supported by TRB and FHWA all help to address these gaps and build on opportunities. Understanding ecosystem approaches A true ecosystem approach recognizes the dynamic inter- connections within and between ecosystems and attempts to account for these interconnections in designing compen- satory mitigation. Currently, protection is granted to vari- ous components of an ecosystem without a regulatory framework to address the interconnectivity of the whole ecosystem. To develop and implement an ecosystem approach to trans- portation impacts and mitigation, one must first understand what an ecosystem is. Most definitions refer to communities of plants and animals and their environment and the link between biotic and abiotic components. To understand the functions of an ecosystem, the processes linking the various components, including the soil, biology, geology, topography, and hydrology, must be understood, as well as the flow of material and energy. Spatial scale is also important to con- sider, and the implications for resources of concern. In gen- eral, watersheds and ecoregions have been the major unit of organization for ecosystem studies and theory. Although numerous scientific studies have worked to understand the processes of and interconnections within ecosystems, full understanding remains a difficult goal. Eco- systems are inherently dynamic, and scientists accept that in many cases a stable, steady state is neither possible nor natu- ral. Regulators must contend with these difficulties and a substantial amount of uncertainty when considering how to construct ecosystem approaches to transportation planning and mitigation. providing Data, Methods, and Measures Many sources of data on multiple facets of the ecosystem are available for any given geographic location in the United States; however, the accessibility and usability of that data (in terms of type, quality, compatibility, and format) varies, and a uniform national standard is not available. Nevertheless, considerable progress has been made. Over the last 30 years, much has been learned about the composition, structure, and function of most wetland types in the United States. For example, through the National Wetland Inventory, prelimi- nary maps showing the extent and distribution of the various wetland types have been developed. In addition, the NHP network has developed extensive data sets on the locations of rare, threatened, and endangered plant and animal popula- tions and other features of conservation interest. Programs such as the Gap Analysis Program have looked at relatively large areas and assessed protection status and priorities for listed species. Despite these excellent efforts, nationwide data sets specifying boundaries, ranges, likelihood of species pres- ence, and habitat or wetland quality are largely lacking. In addition to consistent ecosystem-level data, a need exists for a standardized approach to integrating the data. Although identification, delineation, and assessment methodologies have been evolving with more sophisticated technology and scien- tific knowledge, they are not yet readily available for use by regulators and project planners. In addition, although these methodologies are relatively affordable, a committed invest- ment in their development will be required. Finally, a lack of assessment measures is another gap to implementing ecosystem approaches. The availability of mea- sures to assess ecological functions or estimate the quality of a resource depends on the interest in that resource that stems Gaps and Opportunities

58 from a conservation, regulatory, or academic perspective. Interest in wetland function was arguably primarily academic until the enactment of CWA Section 404. The past 30 years of intensive study of wetland function on a site-by-site basis has led to the development of rapid assessment tools that gen- eral practitioners can apply. Outside of wetlands, the study of other ecosystem functions is rapidly proliferating but still lies largely in the academic and conservation realms. A num- ber of developing rapid assessment techniques serve as ana- logs for more intensive, site-specific studies. One example is a comprehensive, scalable “biodiversity scorecard” devel- oped by the Colorado NHP and The Nature Conservancy. The scorecard translates fine-scale information for lay audiences. GIS-based tools are readily available that allow the analysis of patch size, connectivity, and edge metrics and the assessment of potential projects based on the degree to which patches are fragmented or consolidated. These metrics may also serve as analogs for detailed or site-specific assessments of ecosystem function. regulatory Framework for ecosystem approaches Single-Resource Approach Existing law essentially mandates that each agency adopt a single-resource approach as opposed to an ecosystem approach to infrastructure planning. Although regulators and permit writers are often interested in broader-based ecological out- comes, the regulations limit focus to specific resources for each agency. For example, USACE is required to primarily assess project-related impacts on those resources under their reg- ulatory authority, such as jurisdictional wetlands. Although the CEQ and resource agencies signed an interagency MOU encouraging an ecosystem approach in 1995, there is still prog- ress to be made in implementation (Council on Environmen- tal Quality 1995). Imbalance in Mitigation of Resources In theory, the NEPA process is designed to account for impacts on all natural resources. Accounting for impacts on multi- ple resources and ecological functions through mitigation (including compensatory mitigation) is key to an ecosystem approach, but existing regulatory priorities and the single- resource approach work against this. In addition to regulated resources, nonlisted species and unprotected areas need to be conserved and sometimes restored. For instance, a nation- wide trend of major declines in upland plant communities has been documented (Reed et al. 1995). This decline may be a result of the regulatory focus placed on wetlands while upland communities are neglected. The vigorous protection of one group of plant communities can push projects and impacts disproportionately to communities without such regulatory protection. States have primary authority over conservation planning for nonlisted species because they hold primary authority and responsibility for protection and management of fish, wildlife, plants, and their habitats. Under the ESA, the federal government preempts this authority in the case of federally listed threatened and endangered species. Nevertheless, Section 6 of the ESA provides that USFWS and NOAA Fisher- ies will cooperate to the maximum extent practicable with the states in carrying out the program authorized by the act. Agencies can work together on consolidated, multiresource mitigation methods and approaches organized around regu- lated resources to accomplish ecosystem objectives with ben- efits to nonlisted species and other nonregulated resources. Federal Authority of an Ecosystem-Based Regulatory Framework Given the scientific complexity and uncertainty of eco- system processes, the lack of well-organized and accessible data, and the single-resource approach to mitigation, the development of a true ecosystem-based regulatory framework is challenging. A federal jurisdiction approach may be the logi- cal scale at which to offer regulatory protection for resources with national value that cross many other jurisdictional boundaries. However, a federal approach would involve much con troversy and runs counter to recent devolution trends. The evolution of federal authority over wetlands as Waters of the United States has been well documented and is still being chal- lenged. Given this one example, it is difficult to imagine how federal authority over even broader ecosystems or landscapes would be asserted, what group in the legislature would cham- pion such a cause, how this authority could be asserted under the constitution, and how it would survive the certain legal challenges. Nevertheless, the U.S. Department of Agriculture (USDA) has established the Office of Environmental Markets (formerly called Office of Ecosystem Services and Markets) in conjunction with a federal governmentwide Conservation and Land Management Environmental Services Board to assist the development of new technical guidelines and science-based methods to assess environmental service benefits (U.S. Forest Service 2008). These actions will promote markets for eco- system services, including carbon trading to mitigate climate change. The regulatory framework is perhaps the most difficult gap. Although a regulatory framework that provides some level of federal authority over ecosystems may be unlikely, that does not preclude resource and regulatory agencies and DOTs from using ecosystem science and theory to advance their individual regulatory missions and conservation goals within the existing regulatory framework.

59 Coordinating Federal and State Conservation efforts Leveraging Diverse Federal Efforts Various federal and state programs acquire land for conser- vation purposes. Environmental agencies and organizations have engaged in conservation planning to identify areas of highest priority and to direct limited conservation resources in a strategic manner. However, these efforts are often dis- connected, making it difficult to achieve a unified picture of conservation priorities that can assist DOTs and MPOs with their planning efforts. The January 12, 2009, MOU titled Partnership for Coopera- tive Conservation established a framework among six federal agencies (U.S. Department of the Interior, EPA, USDA, U.S. Department of Defense, CEQ, and NOAA) to enable contin- ued collaboration on natural resource and environmental management across organizational and jurisdictional bound- aries (Partnership for Cooperative Conservation 2009). The August 2004 Executive Order on Cooperative Conservation (13352) provided initial direction to the federal agencies that oversee environmental and natural resource policies and pro- grams to promote cooperative conservation in full partner- ship with states, local governments, tribes, and individuals. There is an opportunity to build on these efforts to achieve a unified federal program for conservation planning. Different Spatial and Temporal Scales of Conservation Planning and Need for Online Coordination of Conservation Planning Efforts Conservation planning can occur at different spatial and tem- poral scales. Subglobal or regional approaches to conservation planning often guide decisions and planning within relatively large areas such as ecoregions and identify species, communi- ties, and locations that should be conserved (Gordon et al. 2005). Similarly, conservation planning occurs across a wide variety of stakeholders and action agencies. This information tends to reside at the institutional level at which it was gener- ated, leading to disconnects among differing agency efforts and spatial and temporal scales. Systems are needed for high- level integration of this information and to make this inte- grated information readily available to decision makers. There is no compendium of these programs and regional conservation planning efforts across the United States in a for- mat that can be applied to transportation planning. As noted earlier, regional conservation efforts across the country include • Multispecies conservation, biodiversity, or watershed plans or programs that set goals or targets (e.g., population num- bers, amounts of habitat) or use “hot spot” or gap analysis program methodology and are applied to private lands and other landowner categories; • Ecosystem-based conservation plans that set goals or tar- gets and are applied to private lands and other landowner categories; • Ecoregions identified as high priority or high risk for eco- logical or species loss to systems; and • Single-species conservation plans that represent broad-scale, high-profile, collaborative initiatives affecting ecosystems. A report by the National Council for Air and Stream Improve- ment, Summary of Conservation Planning Efforts in Forested Regions of the United States, provides a first step to help DOTs and FHWA link with these multiple-agency and public–private programs, which occur at scales ranging from small regions to multiple states and countries (Mehl and Haufler 2008). How- ever, a compendium does not address how the regulations associated with each program can be met in a combined fash- ion or how transportation agencies might link with the initia- tives. The IEF addresses this issue, which is worthy of additional research. A top priority is development and display of conservation priorities in geospatial or mapped form. Only 30 of the state wildlife conservation/action plans incorporate mapped pri- ority conservation areas, much less depict areas already under effective conservation. This information is essential for DOTs to take action to leverage investments thus far and help exe- cute conservation objectives in the geographic areas where they work. NGOs such as The Conservation Fund and The Nature Conservancy are familiar with the bulk of these conservation programs and may be able to more quickly and easily con- sider how DOT needs, conservation opportunities and pri- orities, and incentive programs for the relevant parties may be matched and leveraged for maximum conservation bene- fit. DOTs would also benefit from preidentification of specific restoration opportunities by conservation groups. Further- more, DOTs may be able to partner with conservation groups to contribute to maintenance of these projects. Some DOT maintenance departments have indicated an interest in these sorts of partnerships. Improving Information and Data-related Gaps Many of the challenges of implementing an ecosystem approach are related to information and data gaps. To date, DOTs and resource agencies have not invested in nationwide or regional data sets that could answer many ecological questions and enable many permitting and consultation questions to be resolved earlier in the design process. However, overall data quality, management, storage, access, and security concerns have been ongoing issues, and many agencies are making prog- ress in this area. For example, USFWS landscape conservation

60 cooperatives address some of these issues. Many agencies do not have the time to identify data sets and understand what is available. The IEF identifies data sets to implement an ecosystem-based approach. The SHRP 2 Capacity program is also sponsoring a project to bring together national eco- logical data sets in a one-stop shop. Local Land Use and Land protection Gaps DOT investments in mitigation sites often are compromised over time by changes in local land use that ultimately affect the resource created or restored through the DOT’s mitigation effort. These impacts, when combined with the institutional and technical challenges of finding and acting on conserva- tion and restoration of priority sites for mitigation, make it a real challenge to implement the Eco-Logical approach (Brown 2006). The sections that follow explore some of these gaps in more detail. Delegated Land Use Authority by State and Local Jurisdictions All 50 states have adopted zoning and enabling legislation that largely relegates land use control to local jurisdictions. States vary markedly in how they award planning authority. Means for delegating land use authority include home-rule provisions, state constitutions, legislation, and adoption of municipal charters. Home rule means cities or counties can adopt the “plenary police power” of the state and legislate on any matter that affects the health, safety, or welfare of the citi- zens, except for matters of statewide concern. Some states adopt a uniform building code for the entire state and pro- hibit local governments from adopting codes that differ from the state’s code. Delegated land use authority does not always come with a planning requirement. Only about half of all states require municipal or comprehensive planning. States requiring plan- ning also vary in the extent to which they impose conditions on these plans. Some, such as California, require local plans to have a transportation element or have created incentives for integrated planning and consideration of greenhouse gases or natural resource implications. In addition to comprehensive planning, zoning and subdivision regulations become the legal tools that communities and counties have to manage what actu- ally gets built (location and intensity of development), to estab- lish growth controls, and to protect natural resource services important to the overall quality of life and the health, safety, and welfare of their citizens. Finally, subdivision regulations and range ordinances and regulations can govern the actual place- ment and design of what gets built. Although it is not the pur- pose of this research to examine these strategies for protecting local resources, the sustainability of ecosystem resources will likely be driven in many areas by the ability and willingness of local governments to manage land use in such a way as to preserve watershed hydrologic functions and protect open space resources while also sustaining their economic develop- ment interests. Implementing the Eco-Logical approach to the fullest extent possible will require that the gap between local economic and land use interests be linked to regional, state, and national eco- system restoration and protection goals and objectives and to communities’ natural resource base and the services they pro- vide or can provide through restoration. Sustainable develop- ment depends on this. The first, easiest, and now very timely step would be to provide data on conservation and restora- tion needs and priorities to local governments for voluntary local action. By making it easy for local governments to take this information into account in their own planning, without needing specialized staff or waiting for input from few and overstretched natural resource agency staff, effective local deci- sion making, comprehensive planning that includes natural resources, and local and more informed environmental advo- cacy can proceed. Long-Term and Short-Term Land Protection Land protection ensures benefits are protected even if land- ownership changes. Long-term agreements that run with the land, such as conservation easements, are always pref- erable to short-term contracts; however, requiring per- manent easements is a significant barrier to entry and is not recommended for temporary impacts. For permanent impacts (e.g., wetland removal and fill or species take), creditable projects need permanent conservation ease- ments or the equivalent (deed restrictions, covenants, or agreements from public agencies). For temporary impacts (e.g., air or water pollution), creditable projects need a lease covering the credit ing period of the project, at mini- mum. For example, if nutrient reductions are sold for 5 years, there should be at least a 5-year lease with the land- owner to protect those reductions. Lack of Monitoring of Deed Restrictions on Private Property The most serious disadvantage to deed restrictions on property not owned by a conservation agency or organization is the lack of a designated party to assume monitoring and enforcement responsibility. In some states, such as Michigan, the law limits who can enforce the restrictions and for how long they can do so. For example, if a landowner inserts restrictions in the deed and then sells or transfers the land without retaining land nearby, the restrictions may not be enforceable.

61 Climate Change Uncertainty Climate change uncertainty relates to the viability of—or in another view, the need for—a conservation investment by the time the transportation improvement actually occurs. Pressure will continue to increase on all species and habitats, making conservation today more important than ever. DOTs and resource agencies risk that species may still face sharp declines despite large investments in their recovery and expansion. One thing nearly all parties in the transportation and conservation planning process seem to agree on is the need for greater focus on the impacts climate change will have on the long-term func- tionality of the conservation investment. Organizational and process Gaps Key organizational and process gaps are discussed. Guidance on Implementing the Watershed Approach The 2008 joint USACE and EPA Mitigation Rule stresses a watershed approach to making decisions about mitigation, but it leaves the specifics up to each of the 38 USACE Districts about how they will implement the watershed approach to establish mitigation site priorities. The 2008 rules promote using watershed plans as a basis for identifying priorities, but many areas of the country do not have watershed plans. Where plans have been completed, a range of approaches has been used to develop them (U.S. Environmental Protection Agency 2008; Schueler and Kitchell 2005; Ohio Environmental Protec- tion Agency 1997). Although some states have clearly defined restoration needs in the form of a “watershed capital improve- ment plan,” others provide only very general restoration needs. Guidance on implementing a watershed approach and infor- mation about reliable wetland locations and conservation and restoration priorities are greatly needed. Guidance on Integrating Section 404 Mitigation and Section 7 Projects The Eco-Logical approach would be supported by guidance defining how to implement mitigation projects that, when possible, collectively meet Section 404 and Section 7 compen- satory mitigation requirements. An example of this combined approach occurs in south Florida, where wetland mitigation banks have been authorized by USFWS to sell credits for impacts on Florida panther habitat (referred to as panther habitat units, or PHUs). Because wetlands also serve as pan- ther habitat, each wetland credit at the bank also contains a specified number of PHUs. The number of PHUs tied to a wetland credit depends on a variety of factors, including the bank’s location and the quality of wetland habitat represented by the credit. The purchaser of a wetland credit is also pur- chasing PHUs with the stipulation that the wetland credit and PHUs associated with that credit must be used to mitigate wetland and panther habitat impacts for the same project. It would be considered double-dipping if the wetland credit were used for one project and the PHUs associated with that credit were applied to mitigate panther impacts resulting from another project. Criteria for Evaluating Conservation Efforts USFWS considers any conservation efforts by state or local governments, tribal governments, federal agencies, businesses, organizations, or individuals that positively affect species’ sta- tus in listing decisions. The Services criteria for listing are a good starting place for evaluating other conservation efforts, including the value of DOT contributions to conservation of species and ecosystems. According to USFWS, the certainty of implementation and effectiveness of a formalized conservation effort may also depend on criteria specific to each particular species, habitat, location, and action. Individual circumstances will also determine the amount of information necessary to satisfy these criteria. These factors are important for DOTs and their partners to consider in developing conservation banks or participating in proactive efforts to improve conditions for declining species in order to avoid future species listings. Better Funding of Long-Term Environmental Maintenance and Monitoring In locations where DOTs retain responsibility for long-term maintenance of environmental features, better estimation and funding are needed to allow these activities to be reliably carried out. Resource agencies can support this effort through more complete decision making in planning, in advance of programming, so that environmental needs can be budgeted as early as is practicable. Capital cost estimates for environ- mental mitigation features generally do not extend past con- struction to long-term monitoring or maintenance, beyond what may be specified in a permit and included in contracts. However, there are many reasons why good estimates are criti- cal to sound project and program management.