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52 5.1 Introduction In conjunction with wetland impacts and mitigation, there are many other site-related con- straints that may affect a proposed project. This chapter gives a brief overview of common types of constraints. Identifying these constraints early in the planning phase is important. This allows the project proponents to adjust project timelines, modify the project if required, and secure additional funding if needed. Note that some of these constraints are related to wetland mitiga- tion (e.g., wildlife hazards, protected species) and some happen in conjunction with an overall environmental assessment but may not impact wetlands directly (e.g., historical resources). 5.2 Hazardous Wildlife Attractants One of the most frequent concerns when permitting wetland impacts/mitigation or a storm- water management plan on airports is inadvertently creating a hazardous wildlife attractant. This is not a potential impact to the resource, but an impact to aviation safety, which should always be paramount. On-site wetlands and stormwater management ponds can attract potentially hazardous wild- life, such as waterfowl, and pose risks to aviators and those living and working near an airport. Ideally, all wetlands and open water stormwater management ponds should be removed from the airfield, and compensation should be provided off site at an appropriate distance from aircraft movement areas and approach/departure corridors. For flood attenuation and water quality miti- gation (functions that must be replaced on site), it is best to employ sterile mitigation options like underground storage, dry retention, or covered ponds. However, relocating wetlands or creating sterile replacement features can be expensive. Stormwater management facilities and wetlands are specifically listed in AC 150/5200-33B Hazardous Wildlife Attractants On or Near Airports as land use practices on or near airports that potentially attract hazardous wildlife. Wetlands/surface waters include natural forested and herbaceous wetlands (see Figure 5-1), lakes, created wetland areas for mitigation, man-made stormwater treatment ponds and ditches, and areas of standing water in the Airport Operations Area (AOA) (see Figure 5-2). These areas can be attractive to many species of wildlife, including wading birds, waterfowl, shorebirds, and alligators that depend on wetlands and surface waters for nesting, roosting, and foraging opportunities (see Figure 5-3). Prey species also use these areas as fresh water sources, thereby attracting larger predators, such as osprey, hawks, and coyotes. Note that the stormwater ponds discussed here refer to unlined ponds constructed of earthen materials to store stormwater for flood control and water quality improvement. Airports may also have engineered ponds with synthetic liners for storing waste deicing fluid. The latter are typically not as attractive to wildlife and are not discussed further in this document. C H A P T E R 5 Constraints
Constraints 53 Figure 5-1. Potential wildlife attractant: Herbaceous wetland located within the infields at an airport could attract hazardous wildlife toward the movement areas. Photo courtesy of Environmental Resource Solutions. Figure 5-2. Standing water in AOA: Standing water adjacent to movement areas is highly attractive to hazardous wildlife. Ensuring proper drainage can help to avoid creating this attractant. Photo courtesy of Environmental Resource Solutions. Figure 5-3. Potential wildlife attractant: Open water sources with adjacent woodland habitat can provide food, water, and cover for hazardous wildlife. Photo courtesy of Environmental Resource Solutions.
54 Wetland Mitigation, Volume 2: A Guidebook for Airports Ponds and wetlands provide preferable conditions for nesting waterfowl. Aquatic vegetation in and along these features provides ideal nesting habitat with access to food, water, and cover: the three essential factors wildlife need to survive and thrive. In addition, the presence of young waterfowl is attractive to a variety of larger predators, such as raptors and coyotes. Research shows that 10 of the 15 bird species most hazardous to aircraft are highly attracted to these types of water features (DeVault et al. 2011). To reduce the potential hazards posed by wildlife attracted to stormwater management facilities the FAA has established guidelines for developing stormwater management facilities on and near airports. The guidance discourages the use of open water ponds and encourages conveying water away from aircraft movement areas and reducing drainage times to 48 hours or less following the design storm. However, these guidelines do not always concur with local stormwater management guidelines and ordinances, and airport operators may need to work with local agencies to develop site-specific solutions that achieve water quality goals without posing hazards to aviators and the public. Blackwell et al. (2008) studied the avian use of stormwater-management ponds by considering the pond surface area, ratio of the area of open water to area of emergent and woody vegetation, perimeter irregularity, and geographic isolation. The study results indicated that ponds with irregular shapes, with an intermediate amount of emergent vegetation and located near other ponds were highly attractive to wildlife. Similarly, species richness increased when wetlands were part of a large wetland complex rather than an isolated wetland (Brown and Dinsmore 1986). These conclusions could be applied to stormwater mitigation design based on its proximity to the AOA. It is imperative that project proponents consider the potential risks associated with hazardous wildlife when evaluating wetland mitigation options or new stormwater management facilities. The annual cost of wildlife strikes to the U.S. civil aviation industry in 2015 was projected to be 69,497 hours of aircraft downtime and $229 million in direct and other monetary losses. Wildlife strikes have killed more than 262 people and destroyed over 247 aircraft since 1988 (Dolbeer et al. 2016). Airport operators should consult with the FAA or USDA when evaluating mitiga- tion and stormwater management options to confirm that a proposed design will not create a potential wildlife attractant. 5.3 Threatened or Endangered Species (Listed Species) The presence or potential presence of listed species or protected habitat may place constraints on a proposed project in many ways that include, but may not be limited to, the following: ⢠Habitat identification, ⢠Species surveys, ⢠Report preparation, ⢠Agency consultation, ⢠Site design changes to avoid or minimize impacts, ⢠The necessity to obtain permits relating to listed species, ⢠Construction technique or scheduling requirements, and/or ⢠Relocation of individuals and/or habitat preservation. Any of these can introduce significant time delays and costs. The presence of listed species often requires that many or most of these actions be taken. If the wetland(s) to be impacted by a proposed project contain listed species, permitting and mitigation will also need to take place through the state and federal wildlife agencies, in
Constraints 55 addition to standard wetland permitting. This normally includes the USFWS and the local state wildlife agency. Typically, permits are issued for aviation projects, especially because protecting wildlife on airports is highly discouraged due to the risk of a wildlife strike; however, this will extend a project timeline and increase costs, at a minimum. In some cases, the presence of a listed species and/or listed species critical habitat (as determined by the USFWS) can terminate a project altogether. However, this is not the most common scenario. 5.3.1 Federally Listed Species The ESA was passed by Congress in 1973. It directs the federal government to identify, track, and take an active role in the conservation of at-risk species. The ESA lists species as endangered, threatened, proposed, and candidate. A proposed species has been proposed for listing but has not made it completely through the evaluation process due to other spe- cies priority. A candidate species has been through review and identified to be on a watch list for future listing. It also identifies designated critical habitat for some listed species. Section 7 of the ESA requires all federal agencies to consult with the USFWS and NMFS (if applicable) to ensure that their activities are not likely to jeopardize the continued existence of listed species or adversely modify their designated critical habitats. These federal agencies are known collectively as âthe Service.â The ESA includes animal and plant species. Typi- cally, in most areas there are more federally listed wildlife species than there are federally listed plant species. Compliance with the ESA is required for all projects that are conducted by federal agencies, receive federal funding, and/or receive a federal permit (such as a permit from the USACE). This includes all projects that receive any funding from the FAA. It is the responsibility of the project proponent(s) to determine the level of effect of the proposed action to listed species resources. The Service then must review the data presented, request more data if necessary, and indicate whether they concur. This is the Section 7 consultation process, and it can take place in conjunc- tion with the NEPA review process or be independent of it. Note that Section 10 may also be used in place of Section 7 for private projects without a federal nexus (i.e., does not require a federal permit or receive federal funding). Under Section 10, the project applicant must prepare a Habitat Conservation Plan (HCP) prior to obtaining an incidental take permit (ITP) (if required). An ITP is issued by the USFWS and authorizes the permittee to unintentionally take (harass or kill) a species protected by the Endangered Species Act. Obtaining an ITP can be difficult and impacts to listed species should be avoided if possible. 5.3.2 State and Locally Listed Species States usually have their own lists of protected animal and plant species. A stateâs list typi- cally includes all federally listed species in the area, plus many additional species recognized as imperiled by the state. State agencies responsible for listing species vary, and may be part of a stateâs environmental department, agriculture department, and/or wildlife/game authority. Animals and plants may be overseen by separate state agencies. If NEPA documentation were completed for the project, it may be possible to use some or all this information to determine the projectâs effects on state listed species. However, additional studies or surveys may have to be completed to fully address species that are listed by the state but that are not federally listed. Also, it is not unusual for a site to have more state listed species concerns than federal listed species concerns because state listed species tend to be more common than federally listed species and state lists are more inclusive. State agencies may also place additional constraints on the project, including construction requirements. FAA CertAlert 13-01, Federal and State
56 Wetland Mitigation, Volume 2: A Guidebook for Airports Depredation Permit Assistance lists all the websites and contact infor- mation for the relevant wildlife agency within each state. Local regulations (county, parish, city, etc.) may also place addi- tional constraints involving animal or plant species. Local regula- tions may require additional protections for species already federally or state listed, or they may involve protecting additional species. Check with local regulations to determine if any affect the proposed project. 5.4 Invasive Species Disturbing or altering a site may increase the potential for infestation by invasive species. Both animals and plants may be invasive. According to Executive Order 13112, an invasive species is defined as a species that is (a) non-native (or alien) to the ecosystem under consider- ation and (b) whose introduction causes or is likely to cause economic or environmental harm or harm to human health. Increases in the growth of invasive plants may have two deleterious effects: (1) invasive plants may attract or change the behavior of animals, thereby leading to increased wildlife hazards; and (2) invasive plants may require control or additional main- tenance, thereby increasing grounds management costs. In addition, Executive Order 13112 requires any action executed by a federal agency (e.g., the FAA) that may affect the status of invasive species shall (to the extent practicable) prevent the introduction of invasive species, detect and respond to invasive species populations, monitor invasive species, and provide for restoration of native habitat. Invasive species are of greatest concern when considering permittee-responsible mitiga- tion. In this case, the permittee is responsible for the documentation demonstrating that the mitigation does indeed replace the lost functions and values of the impacted wetland. Often, additional documentation demonstrating that the value is retained over time is also required (e.g., mandatory monitoring for 5 years following implementation). If invasive species are a concern or are present in unacceptable amounts within the mitigation area, the permit- tee will have to take corrective action until invasive species are eliminated or diminished. Fulfilling these responsibilities can be risky, time-consuming, and expensive (particularly if adaptive management is required). In addition to avoiding wildlife attractants, the threat of invasive species is another reason why permittee-responsible mitigation is discouraged when another option is available (e.g., a mitigation bank). 5.5 Historical or Archaeological Resources Federal agencies are responsible for preserving historic properties as per Section 110 of the NHPA of 1966, as amended. Section 106 of this Act requires federal agencies to consider the effects of projects impacting properties on, or eligible for inclusion in, the National Register of Historic Places. When issuing a permit, the USACE must confirm that Section 106 resources would not be adversely affected by a proposed project or its mitigation. The Section 106 process is entirely independent of the wetland per- mitting and mitigation process but can influence the schedule and costs of a proposed project. Historical and archaeological resources are often addressed through the NEPA process. To reduce paperwork and redun- dancy between the NEPA and Section 106 processes, federal agencies may use the NEPA process to make their historical impact review more Section 106 Process and Mitigation Relevance This process is entirely independent of the wetland permitting and mitigation process, but can influence the schedule and costs of a proposed project. More information about the CertAlert 13-01 can be found at: ⢠https://www.faa.gov/airports/airport_ safety/certalerts/media/cert1301.pdf
Constraints 57 efficient and effective. But to do so, close adherence to the requirements of 36 CFR Part 800.8 is required. Cooperation among the FAA, the SHPO/THPO, consulting parties, the public, and in some instances, the ACHP, is a key factor in combining the NEPA and Section 106 processes. 5.6 Hazardous Materials and Contamination Four primary laws have been passed governing the handling and disposal of hazardous materials, chemicals, substances, and waste. Two of these statutes are of most importance to the FAA in proposing actions to construct and operate facilities and navigational aids: ⢠The Resource Conservation and Recovery Act (RCRA), as amended by the Federal Facilities Compliance Act of 1992; and ⢠The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA or Superfund) and the Community Environmental Response Facilitation Act of 1992. The RCRA governs the generation, treatment, storage, and disposal of hazardous wastes. CERCLA provides for consultation with natural resources trustees and cleanup of any release of a hazardous substance (excluding petroleum) into the environment (FAA 2015a). Executive Order 12088, as amended, directs federal agencies to: comply with âapplicable pol- lution control standards,â in the prevention, control, and abatement of environmental pollution; and consult with the USEPA, state, interstate, and local agencies concerning the best techniques and methods available for the prevention, control, and abatement of environmental pollution (FAA 2015a). Hazardous materials may be on-site prior to the proposed action, placed or used on-site during construction, and/or generated on-site following the proposed action. As with historical and archaeological resources, hazardous materials are typically addressed indepen- dently of any wetland permitting or mitigation but are most commonly addressed through the NEPA process. Hazardous materials can potentially affect the development of a proposed action in several ways, including, but not limited to, the following: ⢠Hazardous materials must be addressed in the NEPA study. This study will conclude whether hazardous wastes as defined in 40 CFR part 261 (RCRA) will be generated, disturbed, trans- ported or treated, stored or disposed of, by the action under consideration. If so, management of these wastes is regulated by 40 CFR parts 260-280 and transportation is governed by 49 CFR parts 171-199. ⢠If other hazardous materials are used, generated, or disturbed, the applicant must comply with applicable pollution control statutes and requirements that may include, but may not be limited to, those listed in Appendix 2 of Order 1050.10B: Prevention, Control, and Abatement of Environmental Pollution at FAA Facilities. ⢠In addition to regulatory and abatement issues, hazardous materials may also result in future liabilities. In accordance with Order 1050.19: Environmental Due Diligence Audits in the Conduct of FAA Real Property Transactions, an Environmental Due Diligence Audit (EDDA) shall be conducted to evaluate subject properties for potential hazardous substances contami- nation that could result in future FAA liabilities. ⢠If previously unknown contaminants are discovered during construction, or a spill occurs during construction, work should stop until the National Response Center (NRC) or the appropriate state/local agency is notified. ⢠Hazardous waste issues can affect wetland mitigation projects by delaying site construction and adding significantly to site development costs. For example, during the preliminary exca- vation operations at a mitigation site at a former highway rest area, the equipment opera- tor noticed strong organic odors. The project contractor was required to stop site activities
58 Wetland Mitigation, Volume 2: A Guidebook for Airports pending the collection and analysis of soil samples, the analyses of which determined that the release of diesel fuel, from an unknown source, had contaminated the site. The project propo- nent was required to remove and properly dispose of the contaminated material. 5.7 Property and Easement Acquisition Any time a project could involve the use of property that is not already owned by the airport, the airport must either purchase it or obtain an easement to use it for the desired purpose. Either option may be time consuming and involve a significant expense. Although an airport operator may be reimbursed for the cost of land acquisition, the FAA will require the airport operator to prepare a NEPA document, such as an EA, for parcels of 3 acres or more. In addition, property boundaries may require a new survey, and signed and sealed survey sketches, deeds, or other legal documents are frequently required. Extensive negotiations may also be required, which can pro- long a project schedule. Any proposed action associated with property acquisition, including the construction of a wetland mitigation site, will be subject to the same study requirements outlined aboveâwetlands, listed species, historical/archaeological sites, hazardous materials, etc. 5.7.1 Water Rights The requirement to obtain a water right needs to be determined for permittee-responsible mitigation projects in certain parts of the country early in the mitigation process. This includes states in the West that are subject to prior appropriation water law. In these states, it can be difficult to obtain a water right, particularly in water basins that are over-appropriated. Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming all use the prior appropriation doctrine. Additionally, many wetland mitigation projects involve construction of wetlands that expose groundwater, a practice that is generally considered a con- sumptive loss needing water rights. Wild water in natural drainages is protected under water rights. Wild water seeps, creeks, and rivers are all run through rights, not storage. Therefore, a right would need to be converted to storage for the wet- land or the mitigation site would need to be designed with water control structures (draw down features) to meet the run through rights. 5.8 Obstructions to Air Navigation Airports must often remove or trim trees to comply with 14 CFR Part 77, Safe, Efficient Use, and Preservation of the Navigable Airspace, and these trees may be located within a wetland or adjacent to jurisdictional waters. Removing trees in a wetland without a permit to comply with Part 77 is allowed in most cases without requiring a Section 404 permit from the USACE. How- ever, clear cutting is rarely allowed or requires a permit. If a tree within a wetland can be removed or trimmed without disturbing the soil, a permit is not required. Normally, this requires hand removal excluding any heavy equipment or allowing the trimmed trees to fall and remain in the wetland indefinitely, whichever method has the least impact to the wetland. This is also true if the tree is within an area that has a conservation easement because it was previously used for wetland mitigation. Finally, there are sometimes local considerations for tree removal (e.g., local tree conservation ordinances). States That Use Prior Appropriation Doctrine Alaska Nevada Arizona New Mexico California North Dakota Colorado Oklahoma Hawaii Oregon Idaho South Dakota Kansas Utah Montana Washington Nebraska Wyoming
Constraints 59 5.9 Summary In addition to, and conjunction with, wetland impacts and mitigation, several other concerns related to natural resource need to be considered for a proposed project. These can include, but are not limited to, NEPA documentation, hazardous wildlife attractants, threatened and endangered species, invasive species, historical and archaeological resources, hazardous materials, property acquisition, water rights and 14 CFR Part 77 compliance. Some of these constraints are addressed during the wetland permitting process and others are considered independently of wetland impacts. Being aware of all potential constraints during the project planning phase will help air- ports reduce negative impacts to the project timeline and to the costs of a project.
