Legal Requirements for State Departments of Transportation Agency Participation in Conservation Plans (2017) / Chapter Skim
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Pages 4-21
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4in order to obviate a potential listing and provide an enhancement of survival permit under Section 10(a)
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5approved by the Corps. Other agencies, including the FWS, NOAA, and the Natural Resources Conservation Service, have the opportunity to review and comment upon Corps permits.
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6Guidance Letter27 incorporating some additional practices and approaches that had been recommended by a 2001 National Academy of Sciences study to improve the long-term performance and accountability of compensatory mitigation.28 2. The 2008 Compensatory Mitigation Rule In December 2003, Congress included a provision in the Department of Defense appropriations bill requiring the Department of the Army to promulgate regulations providing fair and efficient standards and procedures for wetland and stream mitigation.
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7Mitigation banks and ILFs must prepare a mitigation plan, which must include the following elements, many of which relate to conservation planning and landscape-scale issues:36 a. The mitigation plan must describe the objectives for the compensatory mitigation project(s)
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8resources within watersheds through strategic selection of compensatory mitigation sites."39 Corps district engineers use existing watershed plans, when available, but they may also use other types of plans and information to guide their decisions. In the absence of a prepared watershed plan, district engineers may use data on trends in habitat conversion and loss, cumulative impacts, presence and needs of sensitive species, site conditions that affect the success of compensatory mitigation, and other information.
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9transportation agencies may encounter either of these requirements when determining how best to structure their activities and to mitigate for impacts.52 In general, mitigation driven either by section 7 or section 10 will lead to the need for thorough understanding of impacts and development of ecologically sound conservation measures, often involving conservation plans either developed by the state transportation agency itself, or by a resource agency or conservation bank provider offering to provide the mitigation credits needed.
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10 are 1,374 animal species and 906 plant species listed as threatened or endangered under the ESA.60 After the decision is made to list a species as threatened or endangered pursuant to the requirements of ESA section 4, critical habitat must also, "to the maximum extent prudent and determinable… concurrent with issuing proposed and final listing rules, respectively," be designated to support its conservation.61 Critical habitat is defined as "the specific areas within the geographical area occupied by the species, at the time it is listed…(I) essential to the conservation of the species and (II)
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11 or recovery plans or conservation agreements concerning listed species.73 It is preferable to enter into this type of relationship with the Services as opposed to addressing conflicts after they arise, but the extent of this responsibility has been shaped by case law over the years. While agencies are obligated to take some action toward the conservation of listed species, it has generally been held to be a minimal requirement, with agencies being granted wide discretion in how they exercise their authority in this regard.74 Second, all federal agencies are required to ensure their actions will "not jeopardize" the continued survival of any listed species or result in the destruction or adverse modification of critical habitat.75 This section is triggered any time a prospective action "authorized, funded, or carried out, in whole or in part, by Federal agencies" may have a direct or indirect adverse impact on any listed species or critical habitat.76 Potentially qualifying actions include, but are not limited to: • actions intended to conserve listed species or their habitat; • the promulgation of regulations; • the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or • actions directly or indirectly causing modification to the land, water, or air.77 For all such actions, agencies are required to consult with the Services to avoid any ESA violations.78 It is important to note that the acting agency is ultimately responsible for remedying any adverse impacts to listed species or critical habitat.79 The Services play the critical advisory role in assisting other agencies in the process of complying with the ESA.80 The definition of "destruction or adverse modification" of critical habitat is an important term in the ESA and has been modified over the years.
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12 listed species or critical habitat in the action area.86 The action agency may also present a preliminary list of species and critical habitat identified in the action area for the Services to confirm.87 The Services have 90 days to respond, using the best available science and commercial data, by confirming, revising, or providing a list of species and critical habitats to the acting agency.88 Thereafter, the action agency must conduct the biological assessment within 180 days or within a mutual agreed upon timeframe.89 This is also required for any federal action that involves "major construction activities," such as building roads or water resource development projects, and prior to any permanent exemptions granted from ESA section 7(a)
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13 After a biological opinion has been issued, the consultation process concludes and the acting agency must determine "whether and in what manner to proceed with the action," considering its obligation under section 7 and the recommendations provided in the biological opinion.102 The consultation process and its outcomes drive the preparation of conservation plans and mitigation activities for transportation projects that are subject to section 7. Many state transportation agency projects fall under section 7 because of the extent of federal funding (the "federal nexus")
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14 non-federal landowners voluntarily undertake conservation measures in exchange for assurances that no further land-use restrictions or regulation will be imposed beyond what is contained in the original agreement. SHAs are initiated by non-federal parties to voluntarily enhance their land for the benefit of listed species.118 CCAAs are similar except that they must benefit a candidate species or critical habitat that has been identified for possible future listing.
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15 goals establish the guiding principle for the conservation program of an HCP. Biological objectives can be used in more complex situations to further breakdown the goals into manageable steps.
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16 compensate for adverse impacts to listed species or their habitats. The concept was first formally introduced at the state level in California, which released its policy on conservation banking in conjunction with the first official conservation bank, the Carlsbad Highlands Conservation Bank.132 The FWS soon recognized the value of conservation banking, and developed guidance documents to allow the recognition of conservation banks to meet section 7 and section 10 mitigation commitments.
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17 • A map of the property on a minimum scale of seven minutes, a U.S. Geological Survey quad map or finer scale if available.
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18 ecological resources (natural resources) caused by land- or water-disturbing activities, and ensure that any remaining harmful effects are effectively addressed, consistent with existing mission and legal authorities."149 It emphasized the adoption of clear and consistent policies, the use of landscape-scale plans to inform decision making, and the importance of private investment in natural resource restoration.
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19 applied to all mechanisms of mitigation, regardless of who is implementing it or where it is located.162 • Recommendations: Mitigation recommendations will be developed by FWS in cooperation with the action proponent, based on best scientific information, and will be provided at the earliest stage practicable to allow for full consideration. Advance compensatory mitigation that is implemented prior to the impacts to resources is preferred.
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20 3. Reliable and Consistent Metric: To the extent possible, the metrics used to calculate both conservation credits and debits must be consistent and reliable.
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21 the 2008 Recovery Crediting Guidance. Under the Interim Guidance: • All habitat-based mitigation projects "must be sited on ecologically appropriate habitat for the proposed covered species.
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