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Environmental Guidebook |
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Environmental Competency Building |
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Committing to ImproveParticipants discussed examples of where their agencies have been improving their collaborative efforts. Throughout the workshop, participants worked together to define issues they face in advancing their own environmental stewardship and streamlining efforts and shared future tools and creative approaches to achieve further success in these areas. FHWA identified the following next steps to advance interagency coordination through environmental stewardship and streamlining:
State DOTs recommended that agencies use the following actions to further their role as environmental stewards:
FWS proposed the following actions to improve their stewardship and streamlining efforts:
NOAA Fisheries set the following environmental streamlining and stewardship goals for their agency:
Documenting the WorkshopThe purpose of this document is to capture the information shared at the workshop, identify related issues and challenges, and present potential recommendations and next steps. This report reflects the statements and experiences of individuals and may not represent official FHWA, FWS, or NOAA Fisheries policy. This document contains the following information:
Setting the ContextFrom May 6 to 8, 2003, the Federal Highway Administration (FHWA) sponsored the Fish and Wildlife Service (FWS)/National Oceanic and Atmospheric Administration (NOAA) Fisheries Environmental Streamlining and Stewardship Workshop in San Diego, California. Approximately 100 people participated in the workshop, which stems from the first Interagency Environmental Streamlining Workshop held in St. Louis, Missouri, in November 2000. The 53 FWS and 20 NOAA Fisheries participants came from Headquarters and from all of the FWS and NOAA Fisheries Field Regional Offices. The 18 FHWA, 1 Federal Transit Administration (FTA), and 5 State Departments of Transportation (DOTs) participants represented Headquarters and various areas of the country. The purpose of this workshop was to identify and build on successful streamlining practices that support FWS, NOAA Fisheries, and FHWA missions and to assess the challenges that limit these agencies' abilities to define mutually acceptable solutions for recurring and emerging issues. The intent was to improve participant understanding of each agency's definition of stewardship and capability to deliver meaningful solutions and to develop strategies for coordinating agency activities. The goals of the workshop support executive level initiatives such as the President's Executive Order (EO) 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews, and the FHWA's Vital Few Goals (VFGs), specifically the Environmental Stewardship and Streamlining Goal. EO 13274 emphasizes the importance of expediting transportation projects while being good stewards of the environment. As such, the EO complements and reinforces the strategic direction that FHWA established in its VFGs, which set expectations, measures, and methods for advancing an improved and efficient environmental review process and for demonstrating environmental stewardship. FWS, NOAA Fisheries, FHWA Headquarters, and State DOT staff set the context for this workshop by establishing a common understanding of each agency's perspective on environmental stewardship and by assessing environmental streamlining progress to date. Presentations by Fred Skaer (FHWA), Benjamin Tuggle (FWS), Phil Williams (NOAA Fisheries), and Gary Winters (California DOT (Caltrans)) provided agency perspectives on environmental streamlining and stewardship and identified existing opportunities to improve relationships among FHWA, FWS, and NOAA Fisheries. With this context in place, participants used the remainder of the three-day workshop to discuss issues surrounding numerous topics, including programmatic consultations, transportation development and the national Environmental Policy Act (NEPA) processes, indirect and cumulative impacts, and other emerging issues. Participants worked together to identify and explore the issues that influence working relationships. The purpose of this document is to capture the information shared and the specific recommendations and conclusions developed at the workshop. This report reflects the statements and experiences of individuals, not official FHWA, State DOT, FWS, or NOAA Fisheries policy. The "Environmental Streamlining and Stewardship" section of this document provides further explanation of FHWA's objectives and efforts. The "Issue-by-Issue" section provides a summary of issues that FWS, NOAA Fisheries, FHWA, and State DOTs identified as affecting their working relationships. This section also outlines the actions participants agreed to take to address the following seven issues:
The appendices include the following:
Environmental Streamlining and StewardshipEnvironmental streamlining and stewardship served as the central theme throughout the workshop. The workshop began with a review of the objectives of environmental streamlining and stewardship, which established a common foundation for workshop discussions. Environmental streamlining and stewardship are key components of both EO 13274 and Section 1309 of the Transportation Equity Act for the 21st Century (TEA-21). Both require that transportation and environmental review processes become more effective and efficient through interagency partnerships and communication. Specifically, EO 13274 directs Federal agencies to work together to promote environmental stewardship and process efficiencies by identifying priority projects for oversight and expedited review. Under EO 13274, US DOT requests priority project nominations from Governors, metropolitan planning organizations (MPOs), transit and airport authorities, and State DOTs. Projects chosen for expedited review must demonstrate regional or national importance and contain stewardship elements and innovative approaches. As of the date of this report, 13 priority projects, representing a diversity of project types, have been chosen, 10 of which are highway projects. 4 of these 13 projects have completed environmental reviews. The EO Interagency Task Force, created by the EO, continues to promote both interagency cooperation and the establishment of appropriate mechanisms to coordinate Federal, State, tribal and local agency consultation, review, approval, and permitting of transportation infrastructure projects.
EO 13274 also calls for the Interagency Task Force to review priority projects and provide the president with an annual report. This report:
Section 1309 emphasizes interagency cooperation through full and early agency participation, negotiated timeframes, dispute resolution, improved decision making, and expedited reviews. These streamlining objectives can be achieved through mechanisms that coordinate agency efforts. Programmatic agreements, State and local initiatives, flexible and creative mitigation, and environmental streamlining research are implementation tools that, when used effectively, will lead to improved stewardship and streamlining. Section 1309 emphasizes interagency cooperation through full and early agency participation, negotiated timeframes, dispute resolution, improved decision making, and expedited reviews. These streamlining objectives can be achieved through mechanisms that coordinate agency efforts. Programmatic agreements, State and local initiatives, flexible and creative mitigation, and environmental streamlining research are implementation tools that, when used effectively, will lead to improved stewardship and streamlining. Building from EO 13274 and Section 1309, FHWA recognizes environmental streamlining and stewardship in its VFGs, which shape the agency's strategic direction. Using an iterative process, FHWA Division Offices, Resource Centers, and Headquarters developed the Environment VFG, along with the VFGs addressing congestion and safety. FHWA designed the VFGs to advance process improvements while acknowledging that a "one-size fits all" approach may not be the solution. FHWA designed the Environment VFG to help achieve the following outcomes:
FHWA plans to work with State DOTs and State and Federal resource agencies to streamline the environmental documentation process by expanding on its VFGs through new guidance, training opportunities, peer-to-peer exchanges, and shared best practices and case studies. FHWA believes that the products of these vast efforts - good government, sound decisions, predictability, and innovation - will be further built upon by promoting the adoption of programmatics, the delegation of low-risk activities, the training of high-level agency staff, and the fostering of relationship building. go to table of contentsIssue-by-IssuePrior to the workshop, FWS, NOAA Fisheries, FHWA, and State DOTs field agency staff completed a questionnaire to identify the issues that affect their working relationships. (The survey and responses are found in Appendix B and C.) These issues include the following:
Topic 1: Transportation Project Development Process During the workshop, participants discussed areas of agreement and disagreement surrounding the definition of the problem, potential solutions, and the resources necessary to resolve each issue. In some cases, it was necessary to clarify key agency policy and regulatory requirements. Topic 1: Transportation Project Development ProcessQuestionnaire respondents recommended that the transportation agencies provide an overview of and clarify the transportation project development process to resource agency staff. The transportation project development process is composed of several phases, including planning, environmental review, and construction and maintenance. FHWA described and workshop participants discussed these project development phases in depth. PlanningPlanning factors stated within TEA-21 address protection and enhancement of the environment and energy conservation. This initial phase is a key component of the transportation project development process and includes determination of project purpose and need, implementation of preliminary studies, early coordination with other agencies, and initial public involvement efforts. Often guided by MPOs, the planning phase of the transportation project development process allows for the early identification and analysis of a variety of issues and deficiencies by all involved to plan for current improvements and future use. This planning in advance allows State DOTs and MPOs to better develop and evaluate alternatives based on demand management analysis for transportation infrastructure. Planning factors stated within TEA-21 address protection and enhancement of the environment and energy conservation, however, Federal resource agencies rarely have the capability to participate in this early phase. Hence, key decisions may be made without knowing what impacts may occur to natural resources. These decisions are generally not effectively negotiable during the NEPA review due to considerable amounts of investments of planning, concept design and political capital to complete this phase Planning is required of both State DOTs and MPOs. After conducting analysis and scoping activities, State DOTs and MPOs must prepare a long-range transportation plan and a transportation improvement program. Both the statewide and the metropolitan transportation plans are designed to look at long-term transportation investments with 20-year timeframes. In addition, the metropolitan transportation plan is financially constrained. Each plan includes multimodal operations and focuses on both economic and environmental goals. In contrast, the Statewide Transportation Improvement Program (STIP) and the Metropolitan Transportation Improvement Program (TIP) are short-range plans, though they must be consistent with existing long-range plans. Both the STIP and the TIP conform to the State implementation plan and describe specific project design concepts and scopes.
MPOs, State DOTs, FHWA, FTA, and resource agencies can use this initial phase to foster and develop both stewardship and streamlining benefits before significant investments are made. Through early coordination, each of these agencies can gain a better understanding of the planning and environmental review process and strengthen interagency relationships1. Such interagency coordination, along with early public involvement, allows MPOs and State DOTs to address, in advance, such key issues as preferred mode selection, public scoping, and environmental justice concerns. FWS and NOAA Fisheries recommend that transportation agencies use the following advanced planning methods to achieve more effective results:
1 Due to the flexibility inherent in the planning process, FHWA recommends that resource agencies familiarize themselves with individual state and metropolitan planning processes. Environmental Review NEPA outlines the Federal responsibility to balance economic and resource issues. A project's purpose and need statement is the foundation of its environmental review and subsequent NEPA document, which analyzes the environmental impacts of each project alternative. Although FHWA approves the obligation of funds, it does not implement the NEPA process; instead, it oversees the process. NEPA outlines the Federal responsibility to balance economic and resource issues. A project's purpose and need statement is the foundation of its environmental review and subsequent NEPA document, which analyzes the environmental impacts of each project alternative. Although FHWA approves the obligation of funds, it does not implement the NEPA process; instead, it oversees the process. The principles of the transportation decision making process support the NEPA environmental review process by emphasizing public cooperation and interagency coordination. States rely on input from the public and resource agencies to accurately consider all alternatives and environmental impacts and to determine the preferred alternative. States also rely on resource agencies to determine critical resources and boundaries that have the potential to be impaired by a project. Resource agencies assist States in determining the direct, indirect, and cumulative impacts of a project. Subsequently, FHWA and the State DOTs use this input in their determination of the appropriate environmental documentation and mitigation measures for a specific project. Although each State follows the same FHWA regulations for requiring Categorical Exclusions (CEs), EAs, and EISs, States apply these regulations based on the unique environmental and transportation issues associated with the project. Although many critical decisions affecting resources are made during the initial planning process by State and local officials, it is during the environmental review phase when most resource agencies become involved. Even then, workload priorities and the availability of staff determine if and when resource agencies are able to participate in this second phase. With adequate staff and funds, resource agencies are able to work early in the NEPA process. However, decreasing funding and staff levels lead resource agencies to become involved later in this phase and limit their focus on fewer resources. Construction and MaintenancePaul Wagner of the Washington State DOT presented information about construction and maintenance, which are the two final stages in the transportation project development process. State DOTs are responsible for these actions and accountable for adhering to the Federal and State laws protecting the environment. Although DOTs are responsible for the development and maintenance of transportation infrastructure that meets environmental laws, many projects are built by outside contractors that act on behalf of State DOTs. In these cases, even greater coordination and communication are required to express what is and is not permitted on a given project. The majority of State DOT construction projects upgrade the existing system. Direct effects caused by these types of construction projects are often of greatest concern due to their noise, habitat, and erosion impacts. To avoid these impacts, State DOTs can use a variety of tools. Pre-construction meetings and construction training bring issues to the forefront in advance of actual construction. Erosion control plans, developed by the contractor and submitted to the State DOT for approval, can also be used to achieve environmental awareness and consensus. For projects that impact highly vulnerable environments, on site biologists can streamline the environmental process by immediately addressing critical issues. Practices such as vegetation control, ditch draining, and guardrail replacement are routine maintenance activities. In-water work, however, is of major concern due to their potential to impact the environment. As with construction, early coordination with and training of maintenance staff can help them learn how to minimize effects. State DOTs can also use performance-based monitoring to ensure that maintenance activities have limited environmental impacts.
Topic 2: Consultation and Technical Review with FWS and NOAA FisheriesSimilar to the overview of the transportation project development process, representatives from FWS and NOAA Fisheries, commonly known together as the Services, summarized the key aspects of consultation on ESA and EFH. Section 7 of the Endangered Species ActSection 7 of the ESA requires the Federal agency associated with a transportation project, called the Action Agency, to consult with the appropriate resource agencies (FWS and NOAA Fisheries) if the project has the potential to impact any endangered or threatened species or critical habitat2. By working with all of the resource agencies, the Action Agency analyzes the impacts of its proposed action and requests consultation for all actions, which may affect listed species or its designated critical habitat. Formal consultation is required for all actions that "may affect" listed species. The Action Agency provides a determination of "may affect" accompanied by supporting documentation often called a biological assessment. 2 Consultation must occur for funding, planning, permitting, and all earth moving or other physical construction. The Action Agency may conclude the formal consultation process informally if they receive concurrence from the FWS or NOAA Fisheries and they are able to document that the effects of the action are insignificant, discountable, or wholly beneficial and are not anticipated to result in incidental take. All projects that may result in incidental take must receive an incidental take statement, which is only available through a formal consultation, which concludes with a biological opinion. FWS and NOAA Fisheries have recognized several challenges in the ESA consultation process, including the following:
The Section 7 consultation process offers a number of regulatory streamlining opportunities to minimize or avoid impacts to habitat or species. For example, agencies can engage in early coordination and communication. This type of informal consultation can facilitate discussion on habitat and ecosystem concerns instead of single species management, further promoting environmental benefits. Other streamlining techniques include:
The Magnusun Stevens Fishery Conservation Management Act of 1975 governs management of the nation's fish. In 1996, an amendment to the Act strengthened the link between habitat rebuilding and fisheries sustainability. Today, the Magnuson-Stevens Act requires the identification of EFH for managed species and measures the effectiveness of conservation efforts to enhance the habitat fish species need throughout their life cycles. Congress defines EFH as "those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity" (16 U.S.C. 1802(10)). Until the Magnuson-Stevens Act, no regulations existed that required other agencies to consider adverse effects on EFH. Federal agencies are required to consult with the Secretary of Commerce regarding any action they authorize, fund, or undertake that may adversely affect EFH. The EFH consultation process is integrated with other agencies' processes and schedules, if agreed upon in pre-negotiation. For cases where existing processes cannot be followed, the EFH regulations specify what consultation process to use based on the degree of potential impact to EFH. While State agencies are not required to consult with NOAA Fisheries, they can, however, be approached for consultation by NOAA Fisheries. The underlying challenge inherent in all EFH consultations is minimizing human impacts while conserving ecologically important places, functions, and species connectivity.
Topic 3: Integration of ESA and EFH into NEPADuring this session, participants discussed the challenges and opportunities associated with integrating ESA and EFH into NEPA. The purpose of the discussion was to identify how resource agencies can be more involved in the development of transportation projects. Issues such as data needs and level of detail were among the most frequently cited challenges. Participants received information about the development of the Wildlife Habitat Handbook that intends to identify opportunities for integrating the processes. Successful examples of process integration were also discussed, including Oregon's Major Bridge Replacement Program - ESA Strategy, and Florida's Efficient Transportation Decisionmaking Process. ChallengesResource and transportation agencies often encounter challenges when working together on transportation projects. The following list provides a description of the challenges to improving transportation and resource agency understanding, implementation, and integration of ESA, EFH, and NEPA:
Participants identified several opportunities for integrating ESA and EFH into NEPA:
FHWA, in cooperation with Federal resource agencies and State DOTs, is developing a Wildlife Habitat Handbook. An interagency 2-day workshop was held in October 2002 that allowed agency staff to articulate their needs and concerns that could be addressed through the handbook. A draft document is scheduled to be prepared in 2004. The purpose of the handbook is to create a common interagency mission, with a focus towards fish and wildlife conservation measures. The handbook will stress the early integration of environmental and community values. Finally, the handbook will provide guidance to streamline the process to create high-quality decisions that will benefit all species. When completed, the handbook will serve as a resource to all stakeholders with the intended outcomes to include:
Critical to the success of the handbook will be multi-agency support of habitat preservation, incentives to direct transportation funds to ecosystem objectives, early coordination in planning stage, and decisions, opinions, and commitment based on "best available data." Successful ApproachesState DOT and FHWA Division Office representatives presented case studies of innovative approaches to integrating the requirements of ESA and EFH into NEPA. The presenters included Leroy Irwin from Florida DOT (FDOT), and Lori Sundstrom from Oregon DOT (ODOT). Each presenter conveyed unique opportunities for advancing environmental streamlining and stewardship through better integration of processes and requirements. Oregon's Major Bridge Replacement Program - ESA StrategyWith many of Oregon's highway and interstate bridges deteriorating at a rapid rate - more than 400 bridges will require replacement within 10 years to keep critical transportation routes open, including Interstates 5 and 84 - ODOT sought opportunities to address the crisis. The result is a programmatic approach to the various State - and Federal-level fish and wildlife environmental reviews, entitled Major Bridge Replacement Program. The size and significance of the bridge replacement program presents an opportunity to accomplish environmental stewardship and streamlining, and to apply the principles of CSS.
Managers and senior staff from State and Federal resource and transportation agencies, consultants, and contractors engaged in a 6-day multi disciplinary workshop. The participants represented the interests of archaeology, biology, bridge design, construction, erosion control, geotechnical, historic resources, hydrology, maintenance, project management, roadway design, socio-economics, wetlands, and water quality. As a result of this workshop, ODOT was able to share their consensus-driven programmatic approach with environmental specialists from across the country while receiving valuable input from other experts. The Major Bridge Replacement Program provides that ODOT will design impact avoidance and minimization into each bridge. ODOT will provide environmental and engineering baseline reports for each site before starting consistent and comprehensive coverage by NOAA Fisheries and FWS for the same bridge to facilitate permit strategies by spring 2004. Defining a "Green Bridge" is critical to the success of the program. ODOT will apply environmental performance standards that account for the environmental impacts of construction and the permanent bridge, including the effects of 75 to 100 years of maintenance activity. Florida's Efficient Transportation Decisionmaking ProcessIn February 2000, an Executive Summit was held in Atlanta, Georgia, for Florida and Federal agencies to garner support and commitment to create a new process for Environmental Transportation Decisionmaking (ETDM). Florida's ETDM process will incorporate agency interaction into the early stages of transportation planning. Avoidance and minimization strategies are identified earlier, and the cost impacts for these strategies can be built into the long-range transportation plan (LRTP). Interaction occurs through a multi-agency Environmental Technical Advisory Team (ETAT) established for each of the seven FDOT districts. The ETAT will consist of 12-20 representatives from agencies with statutory responsibility for transportation, land use, and ecosystem planning, permitting, or consultation on projects, and will seek a proper balance between these competing perspectives. The ETAT will screen projects prior to the LRTP and as projects enter FDOT's Work Program. During project development, the ETAT role shifts from advisory to permit coordination. The motivating forces behind the development of the ETDM Process were Section 1309 of Transportation Equity Act for the 21st Century (TEA-21) and political endorsement and support from senior-level management at FDOT and FHWA's Southern Resource Center and Florida division office. When developing projects, FDOT must address approximately 40 Federal and State environmental laws. All agencies recognized that the process needed to be improved in order to protect and enhance Florida's resources. FDOT has demonstrated a strong commitment to manage growth and maintain connectivity for habitat. To date, three FWS and two NOAA Fisheries positions are funded by FDOT for 2-year periods, longer than the national average time period of funded positions. ETDM includes a State Alternative Dispute Resolution system. A key component of ETDM is the development and maintenance of a centralized database of digital information about the State's resources, which is maintained at GeoPlan Center at the University of Florida. The total estimated budget for ETDM program is $4.5 million. To date, Florida has spent 33 months and $1.3 million developing the program. go to table of contentsTopic 4: Various Topics for Small Group DiscussionsAt the workshop, participants were able to attend two discussion groups of their choice. These discussion groups were based on the following six critical issues identified by the participants in a survey completed before the workshop:
The summary that follows is organized by each emerging issue and provides information from the respective presentations and discussions. Migratory Bird Treaty Act (MBTA) BackgroundThe MBTA prohibits the taking of birds, eggs, nests, and plumage without a permit. Under the MBTA, a strict liability act, no intent is needed and only direct take permits are allowed. There is no provision for incidental takes, and habitat mitigation is not supported, unlike in the ESA or Section 404 of the Clean Water Act (CWA). If fully enforced, the MBTA can penalize people who do not abide by its rules. To avoid this, the purpose behind the MBTA should be communicated to the public and to transportation and resource agencies. Outreach and education can serve as a tool to further stewardship. For example, resident engineers knowledgeable about the MBTA will be able to recognize when it is necessary to bring a biologist to a project site.
FHWA is subject to the January 2001 EO for the Conservation of Migratory Birds (EO 13186), which directs executive departments and agencies to take certain actions that further implement the MBTA. However, since 2002, FHWA has been developing a memorandum of understanding (MOU) with FWS to establish a method that ensures all necessary action is being implemented to protect against take. The MOU will not include tracking language or guidance for State DOTs. Instead, FHWA recommends that FWS develop its own tracking system with State DOTs. As a result, State DOTs and FHWA Field Offices and Headquarters will be able to develop individualized coordination procedures.
FWS encourages FHWA and State DOTs to work together in contacting FWS at the beginning of a project, allowing both agencies to streamline the process and coordinate their actions. FWS is concerned, however, that FWS or FHWA may not be made aware of all projects if States do not contact FWS and if FHWA is not actively involved in the process. FHWA recommends that State DOTs take the following actions to improve their MBTA approach:
CSS/D is a collaborative, interdisciplinary approach that requires all stakeholders to develop a transportation facility that fits its physical setting and preserves scenic, aesthetic, historic, and environmental resources, while maintaining safety and mobility. CSS/D is an approach that considers the total context within which a transportation improvement project will exist. Inherent in CSS/D is flexibility in highway design, which fosters innovative engineering solutions. However, all successful solutions are not necessarily innovative. The Intermodal Surface Transportation Efficiency Act of 1991, AASHTO's National Highway System Design Standards, and the National Highway System Designation Act of 1995 promote the balancing of safety, mobility, economic, environmental, scenic, historic, community, and preservation values. CSS/D emerged as the means to make all of this work. In 1997, FHWA, with input from AASHTO and several environmental interest groups, developed the guide Flexibility in Highway Design to promote flexible design, interdisciplinary decisionmaking, and proactive public participation in the transportation process. The first national CSS/D conference followed in 1998, after which FHWA and AASHTO began supporting six CSS/D pilot programs in Connecticut, Kentucky, Maryland, Minnesota, Utah, and the FHWA Federal Lands Highway Program. Each pilot is integrating CSS/D into the planning, design, development, and construction processes and training nearby States in CSS/D. Questions and ConcernsDuring the highly interactive discussion, participants raised various questions and concerns with CSS/D, as follows:
Participants jointly developed recommendations to advance the application of CSS/D, including:
Ecosystem approaches consider the interaction of every organism with other living organisms and the non-living environment (e.g., predator-prey relationships, hydrology, disturbance regimes such as wildfire and flooding). FWS and NOAA Fisheries have long been developing watershed-based approaches. First, issues are identified (e.g., species, processes). Through this process, priorities are set; tools are then considered to address the priorities. Watershed-based approaches can produce an integrated recovery plan for multiple species within the same watershed, while also identifying habitat restoration opportunities and setting environmental priorities. Watershed plans have the potential to provide a context in which to assess transportation plans. While watershed-based approaches and regional transportation plans have long histories, the two are not integrated.
Participants raised various questions and concerns related to both available data from watershed-based approaches and the integration of watershed-based and regional transportation plans.
Participants offered several recommendations about using watershed-based approaches to improve transportation decisionmaking, including:
Stormwater and its effects on impervious surfaces cause biological concerns and ESA challenges. While stormwater runoff from highways varies in volume, all highway stormwater runoff causes three basic environmental concerns:
Stormwater runoff impacts, including peak flows and pollutant discharge, are exacerbated when it rains. Impervious surfaces may also suffer both hydrologic and geomorphic impacts. In turn, accelerated erosion, reshaped channels, increased sediment, and altered temperatures created by stormwater runoff can lead to further environmental degradation. These environmental concerns affect water quality and the spawning, survival, and migration of fish. In order to protect fish habitats and aquatic ecosystems, water quality and quantity must be protected. Habitats must be complex enough to meet the needs of a variety of species and they must be interconnected. While both the CWA and the ESA regulate impacts to water bodies and sediment, the implementation of best management practices (BMPs) can alleviate stormwater runoff impacts. Stormwater treatment practices also work to minimize pollutant input and changes in peak flow. RecommendationsFWS and NOAA Fisheries introduced a variety of approaches and recommendations for controlling stormwater runoff impacts. Since regulations vary nationwide, some regional guidance is not transferable. For this reason, control approaches should be regionalized. At the national level, FWS, which recommends that aquatic life criteria be developed to protect living organisms, is currently developing temperature criteria for bulltrout. State DOTs and resource agencies will be able to apply this guidance to all bulltrout habitats. NOAA Fisheries' Northwest Region Habitat Division has developed guidance to manage the effects of stormwater runoff. The guidance, which is based on scientific and commercial research, can assist State DOTs in making Section 7 consultation determinations. It also provides a framework for analyzing long-term effects on habitat and fish. Although this guidance is specific to the region's environmental concerns and the involved States' regulations, it is an example of a proactive approach that promotes the conservation measures and BMPs needed to minimize stormwater runoff impacts. The guidance includes minimization measures such as increased infiltration, preservation of vegetation, and protection and improvement of water quality and channel conditions. The region plans to modify the guidance as new issues and solutions arise. Many State DOTs have voiced the need for a consistent framework that can be applied to all State stormwater-permitting processes. Such a framework could help streamline consultations and the development of mitigation measures. In addition, many State DOTs have called for a cooperative effort by local, State, and regional parties to address urban water pollution. State DOTs do not have the sole responsibility to address urban water pollution, and solving this problem requires interagency communication and cooperation. FHWA, State DOTs, FWS, and NOAA Fisheries recommend the following actions to help minimize the impacts of stormwater runoff:
3 http://www.ctic.purdue.edu/KYW/tmdl/tmdlhome.html Reimbursable Agreements Background Some resource and transportation agencies have historically had weak working relationships. The early and active interagency coordination supported by reimbursable agreements, however, has improved relationships and fostered streamlining. Under reimbursable agreements, funded positions can begin early analysis and address resource-specific issues on behalf of FHWA or State DOTs at planning meetings and citizen advisory councils. To develop and maintain strong interagency coordination, reimbursable work plan agreements must be consistently managed and communicated. In addition, agencies must refrain from shifting priorities so that a common understanding of agency goals can exist.
The success of reimbursable agreements is often difficult to gauge. FHWA, State DOTs, FWS, and NOAA Fisheries recommend implementing performance measurements to assess the success of reimbursable agreements. Performance measures can further streamline the process by ensuring that consultations and resource issues are addressed and met in a timely manner. FHWA, State DOTs, FWS, and NOAA Fisheries recommend that performance measures focus on the adherence to timelines and the development of guidelines - two methods that can significantly streamline projects. Performance measures should also be flexible to allow greater environmental sensitivity to projects. FWS and NOAA Fisheries recommend that FWS and NOAA funded positions not be "graded" by transportation agencies due to differences in agency job responsibilities and oversight strictness. In addition, FWS suggests including expedited review as a performance measure as requiring such reviews provides transportation agencies with more assistance without setting detailed standards. Since each State DOT and NOAA Fisheries and FWS regional office functions differently due to unique staff and project demands, agencies need to be flexible when determining the level of oversight for funded positions. Transportation and resource agencies should work together to determine the role of transportation agencies in overseeing funding position, including their role in auditing and reporting. Workshop participants agreed that performance requirements should be created but vary in detail. Finally, FHWA suggested basing the determination of an appropriate candidate and the grade requirement of a funded position on the expertise level of the candidate and the purpose of the position. Aquatic IssuesDuring this session participants discussed the detrimental effects of pile driving and the implications for ESA/EFH consultations. Negative Impacts of Transportation Projects
Topic 5: Indirect and Cumulative ImpactsBackgroundAll Federal agencies must consider the direct, indirect (or secondary), and cumulative impacts of a project in order to satisfy NEPA requirements4. Impacts can be different on every project, and a variety of Federal guidance on meeting these NEPA requirements exists5. Confusion among agencies is widespread; agencies often use different definitions, assessment methodologies and tools, and procedures to meet these requirements. 4 The CEQ defines indirect and cumulative impact requirements in Regulations for Implementing the Procedural Provisions for the National Environmental Policy Act (NEPA) (40 CFR 1500-1508). 5 Available guidance includes CEQ policy, EPA, 309, EPA 315, NCHRP 403, NCHRP 466, and a FHWA position paper. Indirect effects, as stated in 40 CFR 1508.8 in CEQ's NEPA Regulations and in 50 CFR 402.02 in ESA, can often be predicted by analyzing the proposed action. However, as the chains of causation become more complex, it is difficult to predict the specific effects caused by land use, growth, and transportation. "Cumulative impacts" as defined under NEPA and "effects of the action" as stated in ESA are similarly defined and also must be analyzed for projects impacting land use, growth, and transportation. NOAA Fisheries does not formally interpret the definition of cumulative impacts for use in EFH, but instead applies the NEPA definition and guidance directly.
Transportation projects often catalyze growth-induced impacts. NOAA Fisheries and FWS recommends involving them in the MPO planning process and in regional planning efforts in order to assess more effectively these impacts and their long-term effects on species and to develop mitigation procedures. Both NOAA Fisheries and FWS field staff also recommend that State transportation agencies provide full disclosure of impacts and more details on existing projects, allowing FHWA to better predict impacts. The purpose and need statement of a project can alert transportation and resource agencies of possible indirect and cumulative impacts. For this reason, FHWA recommends that specific transportation details, rather than broad descriptions, be outlined in the purpose and need statement. FHWA and State DOTs also recommend that resource agencies provide more data to them during planning and project development in order to foster environmental stewardship through the creation of an ecosystem approach. Although NEPA requires that impacts be recognized, not mitigated, both conservation and mitigation measures should be considered. FHWA, State DOTs, FWS, and NOAA Fisheries agree that once growth impacts are disclosed, other alternatives should be developed. The relationship between a transportation project and its effects on the environment can be further explained by an example presented by Paul Garrett of FHWA — the National Wildlife Federation v. Coleman lawsuit highlighting Section 7 of ESA. Under this lawsuit, the plaintiff, a conservation group, sought to force FHWA and the Mississippi State Highway Department to modify the plans for a new segment of Interstate Highway I-10. The plaintiff alleged that the plans would adversely affect the last remaining colony of the Mississippi Sandhill Crane, an endangered subspecies of the Sandhill Crane6. In this case, the new transportation infrastructure was held responsible for induced growth and, in turn, impacts to critical habitat as designated in Section 7 of ESA. This example demonstrates the challenges that FWS and FHWA have faced in addressing indirect effects. Current and future partnerships among FHWA, State DOTs, and resource agencies present further opportunities to discuss the "when" and "how" of growth as an indirect effect. 6 Section 7 of the Endangered Species Act of 1973: A Significant Restriction for All Federal Activities http://www.elr.info/articles/vol5/5.50189.htm Additional Issues During the construction of a transportation project, an outside contractor is often responsible for the final project outcome. Resource agencies have voiced concern that the contractors may not acknowledge the impacts they are making on the environment. Since contractor impacts are the direct effects of Federal action, resource agencies suggest that a contractor's process be integrated into all interagency consultation. go to table of contentsTopic 6: Programmatic ConsultationsBackgroundProgrammatic consultations (programmatics) are useful instruments in creating partnerships to enhance streamlining, add predictability, and create a landscape approach to project development. Agencies can also use programmatics to evaluate the potential of future actions affecting ESA and EFH listed resources. By establishing standards, guidelines, or governing criteria to which future actions must adhere, programmatics can streamline future actions. Agencies can use formal or information programmatics in a variety of formats, including batched, traditional, and tiered. The requirements for programmatics include the following:
Pre-consultation coordination and cooperation are essential to developing and implementing successful programmatics. This early action allows for proposed activities to be adjusted during the project design phase, where the most flexibility exists to modify the project design. Pre-consultation also allows agencies to incorporate habitat needs into the project design, further expediting the Section 7 process. FWS and NOAA Fisheries encourage the development of design criteria to help identify threats to the conservation of listed species. In order for programmatics to be applied effectively, strong project-level coordination during the project development phase is needed to identify potential conflicts as early as possible. Continuous coordination and communication will ensure that all stakeholders have the information they need and are using the same assumptions. In addition, surprises that could delay the entire process will be avoided. The success of a programmatic is not based solely on continuous coordination and communication, however. As both FWS and NOAA Fisheries pointed out, the courts have rejected both tiered and amended programmatics. Over time, the courts have narrowed programmatic options by eliminating those that they claim are not feasible. Workshop participants agreed that a programmatic must include a specific and detailed analysis that ensures ESA compliance. Overall, workshop participants believe that consultation saves more time than biological opinions. go to table of contentsTopic 7: Mitigation/Conservation MeasuresBackgroundIn December 2002, the US DOT, the U.S. Environmental Protection Agency (EPA), and the Departments of the Army, Commerce, Interior, and Agriculture issued a National Wetlands Mitigation Action Plan to improve the Federal government's performance of wetland compensatory mitigation7. The action plan, which does not preempt Section 404 authority, acts as Federal guidance on TEA-21's preference for using mitigation banking to fulfill the mitigation requirements under Section 404. In order to acquire FHWA funds for monitoring mitigation activities, monitoring must be in conjunction with a compensatory mitigation project or research project. In addition, past policies state that non-governmental organizations should not manage mitigation sites because they do not participate in the operation or management of projects. These policies also contend that Federal funds should not be used for the management of natural resources. 7 More information regarding the plan can be accessed through FHWA's website http://wwwcf.fhwa.dot.gov/environment/wetland/rglmapg.htm Conservation Banking in California FHWA, Caltrans, and local agencies are working on several interchange improvements on Interstate 10 (I-10) in Riverside County. The project area includes a 2020.57-acre conservation bank. State and local governments fund multiple species conservation plans (MSCPs) in this area. While land for the bank was not initially acquired because it must be banked before Section 7 consultation can begin, the endowment and local entity funds needed for the bank are under negotiation. In addition, the involved agencies are developing a programmatic agreement, MOA, and complete list of conservation measures. The I-10 project has been successful due to its detailed focus. FHWA strongly supports such multi-project conservation planning and programmatics. Colorado Short Grass Prairie InitiativeTo protect Colorado's unique prairie ecosystem and declining species while streamlining ESA Section 7 consultation, the Colorado Department of Transportation (CDOT) entered into a MOA with FHWA, FWS, the Colorado Department of Natural Resources (DNR), the Colorado DNR Division of Wildlife, and The Nature Conservancy in April 2001. The MOA is unique for its inclusion of a conservation organization, its 20-year mitigation plan, its protection of habitat as opposed to an individual species, and its mitigation of future impacts at today's prices. The MOA calls for an estimate of the collective environmental impacts from proposed transportation projects over the next 20 years. The involved agencies estimate potential impacts using best available data, GIS mapping, and expert opinion. Conservation is achieved through best practices in design and maintenance — such as buffers around critical species — and through purchase and management of priority habitat. By contributing to multi-species recovery in an integrated fashion, Colorado agencies hope to aid the recovery of listed species and to reduce the likelihood of other species being listed under the ESA. go to table of contentsWorkshop Recommendations and Concluding CommentsAt the conclusion of the workshop, each agency identified the following outstanding issues and next steps in advancing interagency coordination through environmental stewardship and streamlining. FHWA
State DOTs
FWS
NOAA Fisheries
Appendix A — Workshop AgendaUSFWS/NOAA Fisheries
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| Lee Dong (CA, NV, AZ HI, NE, KS, IA, and MO) Kreig Larson (AK, WA, OR, ID, MN, WI, IL, IN, OH, and MI Ruth Rentch (NY, NJ, PR, KY, TN, MS, AL, GA, FL, SC, and NC) Marlys Osterhues (MT, ND, SD, WY, UT, CO, NH, VT, ME, MA, RI and CT) Dawn Whiteside (NM, TX, OK, AR, LA, WV, VA, PA, MD, DE, and DC) |
202-366-2054 202-366-2056 202-366-2034 202-366-2052 202-366-5034 |
Number of FHWA Responses: 20
Number of FWS Responses: 20
Number of NMFS Responses: 3
Agencies that Responded to the Questionnaire
Survey Responses to Question 1: Top Three Issues of Conflict
Survey Responses to Question 2: Process Improvements
Survey Responses to Question 3: FWS/NMFS or DOT/FHWA Improvements
Survey Responses to Question 4a: FHWA — Clarifications for FWS/NMFS
Survey Responses to Question 4b: FWS/NMFS — Clarifications for FHWA
Survey Responses to Question 5: Best Practices
Survey Responses to Question 6: Key Coordination Issues
Survey Responses to Question 7: Suggested Speakers
| Note: Number of respondents per agency appears in parenthesis. | ||
| FHWA Divisions & Resource Centers | FWS Divisions | NMFS Divisions |
|---|---|---|
| (1) Division — Arizona (1) Division — Arkansas (1) Division — Colorado (1) Division — Georgia (1) Division — Idaho (1) Division — Indiana (1) Division — Iowa (1) Division — Montana (1) Division — Nebraska (1) Division — New Mexico (1) Division — New York (1) Division — North Carolina (1) Division — Oregon (1) Division — Pennsylvania (1) Division — Western Federal Lands (1) Resource Center — Midwest (1) Resource Center — South (1) Resource Center — West |
(1) Illinois - Chicago (1) Indiana — Bloomington (1) Michigan — East Lansing Field Office (1) Missouri — unspecified (1) Montana — unspecified (1) Ohio — unspecified (1) Oklahoma — Tulsa (1) Pennsylvania — unspecified (3) Region 1 — unspecified | |
Program Overview