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Legal Research Digest 75 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM October 2017 LEGAL REQUIREMENTS FOR STATE TRANSPORTATION AGENCY PARTICIPATION IN CONSERVATION PLANS This report was prepared under NCHRP Project 20-06, âLegal Problems Arising Out of Highway Programs,â for which the Transportation Research Board is the agency coordinating the research. The report was prepared under Topic 22-01 by James M. McElfish, Jr., Environmental Law Institute, Washington, DC. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. Background State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. The NCHRP Legal Research Digest series is intended to keep departments up-to-date on laws that will affect their operations. Foreword Many state transportation highway development projects must mitigate impacts to natural resources. This is frequent- ly done through compensation for loss of wetlands, purchase of land for lost public uses, or through complex agreements to avoid impacts to endangered species. When these mecha- nisms are tailored to individual projects or are not developed until late in the project development process, they can be costly and time-consuming. They can also lead to public opposition, resulting in expensive and protracted litigation. A number of state transportation agencies have pur- chased property to establish wetland mitigation banks to establish âcreditsâ to compensate for wetland losses. This process requires extensive coordination procedures between state natural resource agencies to avoid last minute nego- tiations that can exacerbate expense and create negative publicity. A few state transportation agencies participate in Habitat Conservation Plans (HCPs). HCPs can cover a general area and therefore are not limited to individual transportation projects. This digest describes HCPs and their relation to wetland mitigation banking, regional planning, and the National Environmental Policy Act (NEPA). Purchase and sale of wetland banks, habitat, and stream credits may be charac- terized as real property or personal property transactions. This digest covers mechanisms used in California, Wisconsin, and other states to set up, monitor, and main- tain HCPs on private or public property through endow- ment funds and the use of conservation easements. It also includes recent updates to related federal regulations and policies. It should prove useful to private and government attorneys, students, and other practitioners in environmen- tal law and related fields. Responsible Senior Program Officer: Gwen Chisholm Smith