Legal Requirements for State Departments of Transportation Agency Participation in Conservation Plans (2017)

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.

26 mitigation ratio is used unless otherwise agreed for specific projects. The EEP approach led to a great deal of learning about the mitigation options and opportunities across the state and by helping to define relevant watersheds. Among other things, it facilitated the provision of miti- gation by third party providers. The process was later streamlined, and further regularized by changing the state’s approach into an approved ILF under the Compensatory Mitigation Rule, using the required “Compensation Planning Framework” approved by the Corps under the rule, and operated by DMS. The Florida Department of Transportation (FDOT) has entered into agreements with the state’s several regional Water Management Districts (WMDs) to provide mitigation credits. For example, FDOT partnered with the South Florida WMD for a conservation area with 850 acres of freshwater miti- gation credits in the 1990s, to be used over time to mitigate for project impacts as they arose.233 Since then, FDOT has been authorized to plan for advance wetland mitigation and funding under state law using “regional, long range wetland mitigation plan- ning rather than on a project by project basis.”234 Using this law, FDOT identifies projects needing mitigation and deposits funds into escrow for use in wetland mitigation; the WMD requests funds to develop and implement mitigation projects. Some districts of FDOT have competitive bidding for miti- gation and awarded contracts by county and habitat type; credits are assigned to particular transporta- tion projects after the fact.235 IV. EXPERIENCE OF STATE TRANSPORTATION AGENCIES IN CONSERVATION PLANNING/ BANKING A. Federal Legislation Addressing Mitigation by State Transportation Agencies Federal transportation laws directly authorize environmental mitigation in the transportation planning and project development process.236 Trans- portation legislation addressing conservation plan- ning and mitigation has advanced in step with Corps-EPA rules governing wetland mitigation banking and ILFs, and FWS guidance and experi- ence on HCPs and conservation banks. Eligible projects under the National Highway Performance Program now include “environmental mitigation efforts related to projects funded under this section, as described in [section 119(g)],”237 as well as environmental restoration and pollution abatement,238 control of noxious weeds, and establish- ment of native species.239 Section 119(g) specifically endorses funding participation in “natural habitat and wetlands mitigation efforts,”240 including estab- lishment and management, participation, and purchase of credits from mitigation banks and ILF programs. It also includes “contributions to statewide and regional efforts to conserve, restore, enhance, and create natural habitats and wetlands,”241 as well as “development of statewide and regional environmen- tal protection plans, including natural habitat and wetland conservation and restoration plans.”242 1. Development of Federal Law Development of funding provisions directed at mitigation has continued since compensatory miti- gation was expressly addressed in federal transpor- tation legislation 25 years ago in Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). ISTEA included provisions authorizing the use of federal funds for transportation projects on environ- mental mitigation measures, including wetland mitigation banking. Later, TEA-21 introduced a preference for mitigation banking over other forms of compensatory mitigation, and added eligibility for other natural habitats. The Safe, Accountable, Flex- ible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)243 succeeded TEA-21, and added additional categories of eligible environmen- tal measures. The Moving Ahead for Progress in the 21st Century Act (MAP-21)244 set forth a more elabo- rate, multi-step eligibility process for environmental mitigation projects. Finally, the Fixing America’s Surface Transportation Act (FAST Act),245 continued eligibility requirements for expenditures for envi- ronmental compensatory mitigation measures. ISTEA provided the foundation for the funding of environmental mitigation efforts in transportation projects.246 ISTEA set forth provisions that explicitly 237 23 U.S.C. § 119 (d) (2) (O). 238 Id. § 119 (d) (2) (M). 239 Id. § 119 (d) (2) (N). 240 Id. § 119 (g) (1). 241 Id. § 119 (g) (1) (B). 242 Id. § 119 (g) (1) (C). 243 Pub. L. No. 109-59, 119 Stat. 1144 (2005). 244 Pub. L. No. 112-141, 126 Stat. 405 (2012). 245 Pub. L. No, 114-94, 129 Stat. 1312 (2015). 246 U.S. Dep’t of Transp. Fed. Highway Admin., Intermo- dal Surface Transportation Efficiency Act of 1991 Infor- mation, (archived), http://www.fhwa.dot.gov/planning/ public_involvement/archive/legislation/istea.cfm (last vis- ited July 29, 2016). 233 ann BRoaDWell, floRiDa DepaRtMent of tRanspoRta- tion DistRict foUR’s WetlanD Mitigation poRtfolio: investing toDay foR toMoRRoW’s tRanspoRtation iMpRove- Ment pRoJects (June 2013) [hereinafter Broadwell]. 234 fla. stat. 373.4137. 235 Broadwell, supra note 233. 236 Venner, supra note 13.

27 approved the use of federal funding for wetlands mitigation efforts under the National Highway System (NHS) and the Surface Transportation Program (STP). Wetlands mitigation efforts could include “wetlands mitigation banks; contributions to statewide and regional efforts to conserve, restore, enhance and create wetlands; and development of statewide and regional wetlands conservation and mitigation plans.”247 The timing of the wetlands mitigation effort could run concurrently or in advance of the onset of the project, within the bounds of the applicable federal law.248 TEA-21 in 1998 expanded the provisions for fund- ing environmental mitigation efforts. Under TEA-21, restoration efforts under the NHS expanded to include natural habitats.249 Additionally, TEA-21 designated mitigation banking as the preferred miti- gation activity to compensate for unavoidable losses to wetlands or other natural habitat caused by trans- portation projects receiving federal assistance, when several factors are present. The impact must occur within the service area of the bank. The bank must contain enough available credits to offset the impacts of the project and meet federal guidelines for mitiga- tion banks. The selection of eligibility preference must be in accordance with all applicable federal laws. The goal of a mitigation bank is to “provide economically efficient and flexible mitigation oppor- tunities, while fully compensating for wetlands and other aquatic resource losses in a manner that contributes to the long-term ecological functioning of the watershed within which the bank is to be located.”250 For STP restoration projects, environ- mental restoration and pollution abatement projects were explicit categories for federal funding.251 In 2005, SAFETEA-LU slightly expanded the eligible mitigation projects under the NHS by adding environmental restoration and pollution abatement to the list of projects eligible for federal funding under section 328.252 The section on eligible projects for the STP was modified by changing the language to “environmental restoration and pollu- tion abatement in accordance with section 328.”253 Section 328 allows environmental restoration and pollution abatement projects to address water pollu- tion or environmental degradation caused in part or wholly by a transportation facility.254 SAFETEA-LU also amended sections 134 and 135 to require state transportation agencies and Metropolitan Planning Organizations to consult with natural resource agencies, to review conservation maps and plans, and to address “potential environmental mitigation activities.”255 MAP-21 changed the title of the National High- way System to the National Highway Performance Program (NHPP).256 Eligible projects must be part of a project for an eligible facility, and consistent with sections 134 and 135, which detail requirements for metropolitan transportation planning and state- wide and nonmetropolitan transportation plan- ning.257 After meeting those requirements, the project has to match an enumerated activity,258 which includes environmental mitigation.259 Options for environmental mitigation efforts encompass natural habitat and wetlands mitigation efforts; those efforts may include participation in mitigation banking or “the purchase of credits from commercial mitigation banks, the establishment and manage- ment of agency sponsored mitigation banks; and the purchase of credits or establishment of in-lieu fee mitigation programs.”260 Further options are contri- butions to statewide and regional conservation and restoration efforts and the development of statewide and regional environmental protection plans.261 Mitigation efforts can run concurrently or ahead of the transportation project in conjunction with all applicable federal law.262 Additional language in MAP-21 mandated that credits from any agency- sponsored mitigation bank can only be used on the eligible projects under the act, or the agency must pay back the amount spent on credits used for a purpose other than mitigation.263 While TEA-21 gave preference to mitigation banks, MAP-21 expanded that preference to include in-lieu fee or other third-party mitigation arrangements in addi- tion to mitigation banking.264 247 Pub. L. No. 102-40, §§ 1006(d)(i)(3), 1007(b) (11) (1991). 248 Id. 249 Pub. L. No. 105-178, § 1106(3)(b), (1998); Venner, supra note 13. 250 U.S. DepaRtMent of tRanspoRtation, feDeRal gUiD- ance on the Use of the tea-21 pRefeRence foR Mitigation BanKing to fUlfill Mitigation ReqUiReMents UnDeR sec- tion 404 of the clean WateR act (July 11, 2003) [hereinaf- ter DOT Federal Guidance]. 251 Pub. L. No, 105-178, § 1108(a)(7)(14). 252 Pub. L. No. 109-59, § 6006(a)(1). 253 Id. § 6006(a)(2). 254 Id. § 6006(b) 255 Id. § 6001. 256 Pub. L. No. 112-141 § 1106(a). 257 Id. at § (d)(1)(A)-(B). 258 Id. at § (d)(2). 259 Id. at § (d)(2)(O). 260 Id. at § (g)(1)(A). 261 Id. at § (g)(1)(B)-(C). 262 Id. at § (g)(3)(A). 263 Id. at § (g)(3)(B)). 264 Id. at § (g)(4)).

28 The FAST Act was signed into law in 2015. Eligi- bility requirements under the NHPP did not change. And under the STP, environmental measures that meet the requirements of sections 119(g), 328, and 329, are eligible for federal funding. Environmental measures include environmental mitigation, pollu- tion abatement, control of noxious weeds, or trans- portation control measures under the Clean Air Act. 2. Federal Regulations The relevant regulations are found primarily in 23 C.F.R. Part 777, “Mitigation of Impacts to Wetlands and Natural Habitat,” which provides policy and procedures for the evaluation and mitiga- tion of adverse environmental impacts to wetlands and natural habitat resulting from federal-aid proj- ects.265 They define key terms, including wetland or habitat enhancement, restoration, and preservation, as well as wetland or habitat functional capacity.266 The regulations provide for funding either concur- rent with or in advance of the construction of high- way or other transportation projects, or even in advance of project level environmental reviews.267 Under current regulations: Those measures which the FHWA and a State DOT find appropriate and necessary to mitigate adverse environmen- tal impacts to wetlands and natural habitats are eligible for Federal participation where the impacts are the result of projects funded pursuant to title 23, U.S. Code. The justifi- cation for the cost of proposed mitigation measures should be considered in the same context as any other public expenditure….It is FHWA policy to permit, consistent with the limits set forth in this part, the expenditure of title 23, U.S. Code, funds for activities required for the planning, design, construction, monitoring, and establishment of wetlands and natural habitat mitigation projects, and acquisition of land or interests therein.268 The rules specifically provide that “federal-aid funds may participate in the development of state- wide and regional wetlands conservation plans.”269 Contributions to these efforts may occur in advance of project construction if consistent with “all appli- cable requirements”270 of federal law and regula- tions and state planning processes.271 Federal-aid participation for replacement of wetlands or natural habitats is only authorized with sufficient legal assurances that the area “will be maintained as a wetland or natural habitat.”272 A state transportation agency may acquire privately owned lands in cooperation with another public agency or third party, and a state transportation agency may transfer the title to, or enter into an agreement with, an appropriate public natural resource manage- ment agency to manage lands acquired outside the right-of-way without requiring a credit to federal funds.273 The reasonable costs of acquiring lands or interests therein to provide replacement lands with equivalent wetland or natural habitat are or func- tional capacity are eligible for federal participation. Activities to ensure the viability of these areas during establishment are eligible.274 3. FHWA/USDOT Guidance and Informational Documents In 1995, the FHWA issued Guidelines for Federal- aid Participation in the Establishment and Support of Wetland Mitigation Banks, implementing the ISTEA provisions. In 2000, a further guidance docu- ment was issued to clarify the use of ILF mitigation for section 404 compensatory mitigation of federal- aid projects under TEA-21.275 USDOT provided addi- tional guidance in 2003 on use of the TEA-21 preference for wetland mitigation banking.276 In 2005, an Information Memorandum on “Federal-Aid Eligi- bility of Wetland and Natural Habitat Mitigation” clarified previous FHWA guidance, including these previous documents.277 It makes clear that participa- tion in these activities for compensatory mitigation may occur concurrent with or in advance of the construction of highway or other transportation projects funded under Title 23, or even in advance of completion of project level environmental reviews, as long as the efforts are consistent with all applicable requirements of Federal law (including the Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended), regulations, and State transportation planning requirements.278 Under 23 C.F.R. Part 710.513 (in effect from 1999 to 2016) a state could acquire property for environ- mental mitigation. A project agreement with FHWA was required in order for the acquisition to be eligible for federal-aid participation and the acquisition had to be in accordance with 23 C.F.R. Part 777.279 In 2016 FHWA deleted 710.513 and for simplicity defined 265 23 C.F.R. § 777.1. 266 Id. § 777.2. 267 Venner, supra note 13. 268 23 C.F.R. § 777.5(a), (b). 269 Id. § 777.9(b). 270 Id. § 777.9(a)(4). 271 Id. § 777.10(c). 272 Id. § 777.11(b). 273 Id. § 777.11(d), (e). 274 Id. § 777.11(f), (h). 275 Federal Guidance on the Use of In-Lieu-Fee Arrange- ments for Compensatory Mitigation Under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act, 65 Fed. Reg. 66,913 (Nov. 7, 2000). 276 DOT Federal Guidance, supra note 250. 277 FHWA, feDeRal-aiD eligiBility of WetlanD anD nat- URal haBitat Mitigation (March 10, 2005). 278 Id. (emphasis in original). 279 Id.

29 “mitigation property” as “real property interests acquired to mitigate for impacts of a project eligible for funding under title 23.”280 In 2008, the FHWA provided an Information Memorandum addressing funding of long-term management for compensatory mitigation provided by wetland and habitat banks and ILFs, concluding that these costs are typically reflected in the price of credits and affirming that they are eligible costs for federal aid.281 In 2006, FHWA and other federal agencies collab- orated on a program called Eco-Logical: An Ecosys- tem Approach to Developing Infrastructure Projects.282 It is intended to provide a methodology for integrating broader-scale ecological consider- ations into transportation planning and decision making, and reflects the value of participating in conservation planning at a variety of levels. A techni- cal approach to collaboration on data and identifica- tion of mitigation opportunities is a further outgrowth of this approach.283 A key aspect of this integrated process is the recommendation for creating a “regional ecosystem framework” that includes a conservation strategy, a crediting strategy, and a data framework with the ability to provide updated conservation and restoration priorities.284 These activities provide an approach that can support state transportation agency participation in conservation plans at multiple scales in order to achieve better conservation outcomes and more efficient processes for project planning, funding, and delivery. FHWA maintains a searchable database of state practices that can assist state transportation agen- cies in identifying useful approaches to conservation decision making. Search categories include, among other topics, watersheds and wetlands, habitat/ ecosystem connectivity and conservation, wildlife and threatened and endangered species, mitigation, and interagency agreements dealing with conserva- tion topics.285 4. Reporting Metrics for Environmental Review The 2015 OMB-CEQ Memorandum on “Metrics for Permitting and Environmental Review of Infra- structure Projects”286 contains a reporting protocol to determine whether the federal permitting and review process “resulted in reduced impacts” to environmental resources. This protocol includes brief explanations of the use of avoidance, minimiza- tion, or compensatory mitigation and the type of compensatory mitigation used.287 On January 13, 2017, OMB and CEQ issued “Guidance to Federal Agencies Regarding the Envi- ronmental Review and Authorization Process for Infrastructure Projects,”288 carrying out certain requirements for tracking and timeliness of envi- ronmental permitting, and accountability for envi- ronmental and community outcomes under the FAST Act. The guidance provides for permitting timetables, coordination of environmental reviews, and time limits. Executive Order No. 13766, signed January 24, 2017,289 directed the chair of the Coun- cil on Environmental Quality (CEQ) to determine, within 30 days after a request from any state gover- nor or the head of a federal agency, whether a proposed infrastructure project is a “high priority” project, taking into account its importance to the general welfare, value to the nation, environmental benefits, and any other factor the chair deems rele- vant. For any project so designated, the chair must coordinate with the “relevant” federal agency head to establish expedited procedures and deadlines for completion of environmental reviews and approvals. These directives may affect the timing and coordina- tion of conservation planning and permitting associ- ated with transportation projects. 285 FHWA, enviRonMental RevieW toolKit, state pRac- tices DataBase, available at https://www.environment. fhwa.dot.gov/strmlng/es3stateprac.asp 286 Shaun Donovan & Christina Goldfuss, Memoran- dum for Heads of Federal Departments and Agencies: Guidance Establishing Metrics for the Permitting and Environmental Review of Infrastructure Projects, M-15- 20, (Sept. 22, 2015). 287 Id. § 3.1. 288 Shaun Donovan & Christina Goldfuss, Memoran- dum for Heads of Federal Departments and Agencies: Guidance to Federal Agencies Regarding the Environ- mental Review and Authorization Process for Infrastruc- ture Projects, M-17-14, (Jan. 13, 2017). 289 Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects, 82 Fed. Reg. 8657 (Jan. 30, 2017). 280 23 C.F.R. 710.105(b), Right-of-Way and Real Estate: Final Rule, 81 Fed. Reg. 57,715, 57,730 (Aug. 23, 2016). Rationale for rule described at Right-of-Way and Real Estate: Proposed Rule, 79 Fed. Reg. 70,004, 70,007 (Nov. 24, 2014). 281 FHWA. feDeRal-aiD eligiBility foR long-teRM ManageMent activities in WetlanD anD natURal haBitat Mitigation (Oct. 3, 2008). 282 Janice W. BRoWn, eco-logical: an ecosysteM appRoach to Developing infRastRUctURe pRoJects, (U.S. DOT/FHWA, Apr. 2006). 283 patRicK cRist, MaRie venneR, JiMMy Kagan, shaRa hoWie, & lisa gaines, ManageR’s gUiDe to the integRateD ecological fRaMeWoRK, RB shRp 2 RepoRt no. S2-CO6- RW-4 (Transportation Research Board of the National Academies of Science, Engineering, and Medicine, 2014). 284 aMeRican association of state highWay anD tRans- poRtation officials. iMpleMenting ecological: integRating tRanspoRtation planning anD ecological Decision MaKing (2016).

30 C. ILFs Established by State Transportation Agencies The RIBITS database maintained by the Corps of Engineers’ Institute for Water Resources shows a total of 56 approved ILFS operating in 26 states across the United States.293 No ILFs are specifically operated by state transportation agencies, but many have agreements with state transportation agencies to use their mitigation credits. Under the Compen- satory Mitigation Rule, ILFs must be operated by governmental entities or nonprofit organizations. There is a pending application for approval of a Minnesota ILF which would exclusively provide mitigation credits for use in mitigation impacts of local road projects.294 The Environmental Law Institute’s 2005 study of ILFs (operating under guidance documents prior to the Compensatory Mitigation Rule) showed 38 ILFs nationwide also with no state DOTs as sponsors,295 although several of these enjoyed funding support through state DOT commitments to purchase advance mitigation, as in the North Carolina EEP. D. HCPs/Conservation Banks Established by State Transportation Agencies There are over 1,100 HCPs completed or in process, many of which are “landscape level” plan- ning efforts greater than a thousand acres. This is a rapid increase in number and scale of HCPs over recent years.296 A small minority of landscape-level HCPs directly support activities by state transporta- tion agencies. A thorough study in 2014 of HCPs over 1,000 acres found that only a few HCPs could be identified that were driven by state or local transpor- tation department needs or participation. In most cases the state transportation agency was not the primary permittee, but was a participant or paying user. Eleven state transportation agency-related HCPs were found in California, Nevada, Texas, and Wisconsin. In only six of these was the transporta- tion agency (or local transportation authority) a permittee or partner in the underlying plan.297 Participation in area-wide HCPs can sometimes be difficult for state transportation agencies. It is impor- tant to note that, “in order for a transportation proj- ect to be a ‘covered activity’ in an HCP, it must be B. Wetland Mitigation Banks and Umbrella Banks Established by State Transportation Agencies The Corps of Engineers’ RIBITS database currently shows 184 operating wetland/stream miti- gation banks that are sponsored by state transpor- tation agencies, in 23 states (Alabama, Arizona, California, Colorado, Delaware, Georgia, Indiana, Illinois, Kentucky, Maine, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Oregon, Penn- sylvania, South Carolina, Tennessee, Texas, Virginia, Washington, and Wisconsin).290 The number of state transportation agency-sponsored banks has grown steadily since the initial 1993 study.291 Some of the current transportation agency banks area multi-site or “umbrella” banks, operated under a single approved banking instrument, but with approvals for additional sites over time. The multi-site bank- ing approach is expressly authorized by the compen- satory mitigation rule. State transportation agencies may also purchase mitigation credits from mitiga- tion banks for which they are not the sponsor. In many cases, the mitigation bank is funded by the state transportation agency, which uses all of its credits as projects demand; but the long-term site management is carried on by a conservation agency (as is the approach under the 2008 Compensatory Mitigation Rule). For example, the Moses Lake Wetland Mitigation Bank in Washington State was approved in 2003, following several years of plan- ning and construction. The site is owned and managed by the City of Moses Lake, subject to a conservation easement held by WSDOT. All credits generated by the bank are used by WSDOT to satisfy its own mitigation obligations in the watershed. Minnesota’s multi-site bank provides mitigation for Minnesota Department of Transportation projects in each large watershed area in the state. Numerous other examples can be found in RIBITS.292 A quarter century of experience with state trans- portation agency mitigation banks has shown that upfront investments of transportation dollars in mitigation planning, construction, management, maintenance, and monitoring are fully consistent with state and federal financial and legal authori- ties. This track record provides a solid foundation for large-scale conservation planning addressing multi- ple resources. 290 RIBITS database (https://ribits.usace.army.mil). 291 See enviRonMental laW institUte anD institUte of WateR ResoURces, national WetlanD Mitigation BanK- ing stUDy: WetlanD Mitigation BanKing: ResoURce Doc- UMent (1994). 292 RIBITS, supra note 290. 293 Id. 294 Minnesota Local Road Replacement ILFP (pending approval). 295 Jessica WilKinson & JaReD thoMpson, 2005 statUs RepoRt on coMpensatoRy Mitigation in the UniteD states (Environmental Law Institute, 2006). 296 The FWS maintains a database of all HCPs at https:// ecos.fws.gov. 297 Lederman & Wachs, supra note 13.