National Academies Press: OpenBook
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Suggested Citation:"IV. CONCLUSIONS." National Academies of Sciences, Engineering, and Medicine. 2017. Legal Requirements for State Departments of Transportation Agency Participation in Conservation Plans. Washington, DC: The National Academies Press. doi: 10.17226/24901.
Page 31

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31 Adjustments to the program including limitations were subsequently added by the legislature. In sum, the enactment of state legislation addressed to state transportation agencies is less important than is the establishment of policies, work- ing relationships, and coordination of those agencies with other conservation planning organizations. Federal transportation laws (FAST Act) and Corps-EPA regulations and FWS policies provide the needed legal support—as evidenced by the develop- ment of these tools across the nation in states without specific conservation planning laws or trans- portation-related conservation requirements. IV. CONCLUSIONS Participation in conservation planning at scale is authorized under federal transportation laws and has an emerging track record at the state level. It also reflects a maturing scientific and regulatory frame- work that values certainty and outcomes over repeated one-off negotiations. Sites are identified for conservation or restoration “based on the results of a regional ecological assessment process” which produces a higher potential for sustaining the restora- tion of a site and a higher level of ecosystem services303 Barriers such as budget and procurement constraints can be overcome consistent with existing law. Mitigation is believed to be better where the scale of planning for mitigation matches the long-term development of transportation projects.304 Key advantages include: assured funds for mitigation earlier in the process, securing needed conservation lands when available and in advance of needs in order to assure they can be obtained at appropriate prices, and enhancing regulatory predictability and certainty in permitting.305 specified in the plan to a level at which FWS can ascertain the effect on endangered species to the legally required degree.”298 Review of area-wide HCPs covering transportation project impacts showed that the level of specificity could be adjusted. The Western Riverside HCP specified miles of road construction covered in designated geographic areas of the plan. The Balcones Canyonlands Conservation Plan in Texas, in contrast, identified general infrastructure “corridors” that would be covered by the plan. The Coachella Valley HCP identified a list of planned transportation projects over the life of the HCP, mapping them geographically and sorted by impact type: interchange projects and associated arterials; Caltrans projects; and regional road projects.299 E. State Laws Authorizing Transportation Agency Involvement in Conservation Planning State laws have not been critical to enable state transportation agencies to engage in wetland mitigation activities or habitat mitigation. The main constraints seem to be institutional and fund- ing related.300 It is true that the California Natural Community Conservation Planning Act has been important to the early development of large-scale conservation planning in that state, which has supported the development of multi-party HCPs and the use of conservation banking as a standard mitigation method for Caltrans as well as other public and private development activities.301 But the key there was not authorization for Caltrans, but the develop- ment of a robust basis for the California Department of Fish & Wildlife to operate at scale on these issues. The North Carolina EEP did facilitate wide- spread planning and advance funding of mitigation in that state, but was enabled primarily by a Memo- randum of Agreement and the acquiescence of the legislature rather than by enabling legislation.302 298 Id. 299 Id. 300 NatureServe, supra note 210. 301 Camacho, supra note 114. 302 Kihslinger, supra note 234. 303 NatureServe, supra note 210. 304 Lederman & Wachs, supra note 13, at 17-18 (citing California and Nevada transportation and conservation planning). 305 Id. at 7-8.

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TRB's National Cooperative Highway Research Program (NCHRP) Legal Research Digest 75: Legal Requirements for State Departments of Transportation Agency Participation in Conservation Plans describes Habitat Conservation Plans (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 characterized as real property or personal property transactions. This digest covers mechanisms used in California, Wisconsin, and other states to set up, monitor, and maintain HCPs on private or public property through endowment funds and the use of conservation easements. It also includes recent updates to related federal regulations and policies.

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