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4-1 Chapter 4 Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4.1 IntroductionÂ Managing roadsides to support pollinators is an important sustainability responsibility for Departments of Transportation (DOTs); however, as more species of pollinators become listed or are being considered for listing under the Endangered Species Act (ESA) of 1973 (16 U.S. Code 1531 et seq.), DOTs also want regulatory certainty. There are several ESA compliance strategies and advance planning efforts that have been successful and are available to transportation agencies interested in implementing proactive measures to aid recovery and avert listings of native pollinators. While strict avoidance of impacts on listed species is often an option for ESA compliance, avoidance can create substantial limitations on DOT operations. This chapter describes the variety of ESA compliance strategies with guidance to identify which are appropriate in different environmental and DOT operations contexts. Consistent with ESA compliance, federal and state agencies, such as DOTs, can incorporate mitigating measures into their projects to reduce their overall negative impact on listed species and manage at-risk species that might become listed. For unavoidable impacts, a number of programs are available to project proponents, such as transportation agencies, that provide a clear regulatory pathway forward to address legal requirements of the ESA but also give them the means to be creative in the types of proactive measures put forth to recover imperiled pollinators and avert listings. Transportation planners and managers recognize compliance with the ESA can present logistical and operational challenges. For example, a species listing leads to regulatory constraints and can often slow down project approvals and constrain construction and operational activities. When responding to the survey described in Chapter 1 (see Conduct of Research Report for full questions and summarized answers), 45 percent of 47 transportation professionals indicated they need to consult with the United States Fish and Wildlife Service (USFWS) or relevant state agency regarding federally or state-listed pollinator species at least once each year. In addition, over half of those individuals (51 percent) needed to consult five or more times a year. Furthermore, 75 percent of 48 St.Â Francis'Â satyrÂ isÂ oneÂ ofÂ manyÂ pollinatorÂ speciesÂ currentlyÂ protectedÂ underÂ theÂ federalÂ ESA.Â PhotoÂ Credit:Â BrianÂ HudgensÂ âÂ https://en.wikipedia.org/wiki/File:Neonympha_ mitchellii_francisci_individual.jpgÂ
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-2 respondents to another question recognize the possibility that if an imperiled pollinator species became legally protected under the ESA, it would cause barriers, such as altered project timelines, increased workloads, and higher costs to their agencies. There are a number of proactive, voluntary ESA compliance strategies from which to choose when planning transportation projects. See Figure 4-1 for assistance with understanding the relationships between identified strategies and opportunities for employing a phased approach to ESA compliance at a programmatic level. See the Evaluating ESA Compliance Approaches section for questions that can be helpful for planners and designers to ask when first evaluating different proactive approaches to addressing ESA compliance. Although often recognized as a challenge, it is important for transportation professionals to recognize ESA compliance also presents often-overlooked opportunities for their agencies. Focused attention and well-thought-out planning and design work by planners and designers on issues tied to endangered and threatened species allow agencies to address immediate regulatory needs within their respective service areas. Additionally, up- front planning by DOTs allows the agencies to take action that pays dividends with respect to time and cost savings as workflow is improved and the number of project redesigns and modifications to operations are reduced across their larger road network. Surveyed transportation professionals recognize the cost savings that come from advance planning efforts and 81 percent of 48 respondents acknowledge the possibility of an imperiled pollinator species becoming legally protected by the ESA would motivate their agency to proactively protect pollinators in order to avert a listing. Additionally, nine transportation professionals participating in the survey recognize early adoption of compliance strategies as being good for public relations and consistent with identified sustainability goals for their respective transportation agency.
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-3 4.2 IntroductionÂ toÂ theÂ ESAÂ The ESA is one of the most far-reaching environmental laws in the United States. Because of the number and extent of both endangered and threatened species, state DOTs will inevitably need to address compliance issues tied to listed species for some of their projects and operations. DOTs may comply with the ESA by avoiding impacts on endangered species based on technical assistance from USFWS. If impacts on listed species (defined as take under the ESA) cannot be avoided, compliance commonly occurs using processes under Section 7 and Section 10 of the ESA. The Section 7 consultation process and the Section 10 permit process are the means by which take is approved under the ESA. Compliance is achieved under Section 7 when a federal nexus exists (i.e., the project requires a federal authorization apart from ESA compliance, license, or funding). In these cases, the lead federal agency is responsible for supporting consultation with USFWS. If no federal nexus exists, an incidental take permit under Section 10 is sought. Successfully complying with the ESA requires up-front investments of time and resources, and a thoughtful and deliberate strategy. In contrast, a poorly coordinated approach to ESA compliance can result in schedule delays, cost overruns, or project failure if permit conditions are infeasible. Careful planning and a good understanding of the ESA compliance process, for both Sections 7 and 10, will help avoid these pitfalls. 4.2.1 ESA Overview Congress enacted the ESA in 1973 with the intent of improving previous protective regulations by creating a more comprehensive approach that would protect not only individual species of threatened and endangered plants and animals but also their habitats and the ecosystems upon which they depend. USFWS and the National Marine Fisheries Service (NMFS; also known as National Oceanic and Atmospheric Administration Fisheries) jointly administer the ESA. NMFS has jurisdiction over listed marine species and anadromous fish, while USFWS has jurisdiction over all other listed species. USFWS and NMFS (collectively known as the Services) maintain lists of threatened and endangered species for which the ESA provides substantial protections. In addition to administering the ESA, once a species is listed, the Services are responsible for determining whether there are areas that meet the definition of critical habitat. Critical habitat is habitat needed to support recovery of listed species; that is, specific areas within or outside of the geographical area occupied by the species at the time of listing that contain physical or biological features essential to conservation of the species and that may require special management considerations or protection. It is important to note that, given the connection between plants and pollinating insects, unlike listed animals, listed plant species are not afforded the same level of protection from take on non-federal lands under the ESA unless there is a federal nexus. ESAÂ SectionÂ 7:Â TheÂ sectionÂ ofÂ theÂ ESA,Â asÂ amended,Â outliningÂ proceduresÂ forÂ interagencyÂ cooperationÂ toÂ conserveÂ federallyÂ listedÂ speciesÂ andÂ designatedÂ criticalÂ habitats.Â SectionÂ 7(a)(1)Â requiresÂ federalÂ agenciesÂ toÂ useÂ theirÂ authoritiesÂ toÂ furtherÂ theÂ conservationÂ ofÂ listedÂ species.Â SectionÂ 7(a)(2)Â requiresÂ federalÂ agenciesÂ toÂ consultÂ withÂ theÂ ServicesÂ toÂ ensureÂ thatÂ theyÂ areÂ notÂ undertaking,Â funding,Â permitting,Â orÂ authorizingÂ actionsÂ likelyÂ toÂ jeopardizeÂ theÂ continuedÂ existenceÂ ofÂ listedÂ speciesÂ orÂ destroyÂ orÂ adverselyÂ modifyÂ criticalÂ habitat. ESAÂ SectionÂ 10:Â TheÂ sectionÂ ofÂ theÂ ESA,Â asÂ amended,Â thatÂ providesÂ exceptionsÂ toÂ theÂ takingÂ ofÂ endangeredÂ speciesÂ ofÂ fishÂ andÂ wildlife.Â SectionÂ 10(a)(1)(B)Â authorizesÂ theÂ ServicesÂ toÂ issueÂ permitsÂ thatÂ allowÂ theÂ takingÂ ofÂ listedÂ speciesÂ whenÂ doingÂ soÂ isÂ incidentalÂ to,Â andÂ notÂ theÂ purposeÂ of,Â theÂ carryingÂ outÂ ofÂ anÂ otherwiseÂ lawfulÂ activity.
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-4 Section 9 of the ESA and federal regulation pursuant to Section 4(d) of the act prohibit the taking of any endangered species. Recent changes in implementation of the ESA exclude threatened species from protection from take, unless a specific 4(d) rule is promulgated. ï· Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect individuals of the species, or attempt to engage in any such conduct. ï· Incidental take is defined as take of listed species that results from, but is not the purpose of, carrying out an otherwise lawful activity conducted by a federal agency or applicant. ï· Harm is defined in the ESA to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patterns, such as breeding, feeding, or sheltering. ï· Harass is defined as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns, which include, but are not limited to, breeding, feeding, or sheltering (50 Code of Federal Regulations [CFR] Â§ 17.3). Exceptions to these prohibitions (i.e., take authorizations) are addressed in Section 7 (for federal actions) and Section 10 (for non-federal activities) of the ESA. Issuance of an incidental take permit under Section 10 of the ESA is a federal action subject to compliance with the National Environmental Policy Act (NEPA). Note that some states (Alaska, Arizona, California, Florida, Nebraska, Ohio, Texas, and Utah as of February 2022) have NEPA Assignment where they assume federal responsibility for transportation projects for the Federal Highway Administration (FHWA). States with NEPA Assignment may use the Section 7 ESA compliance process even when no other federal nexus exists. Since the ESA was passed in 1973, the act has seen minor revisions in 1978, 1979, 1982, and 1988 (16 U.S. Code 1531 et seq). Over the last 47 years, in addition to the revisions, various documents have been issued to guide interpretation and implementation of the ESA. Such documents have taken the form of regulations and guidance from the Services and the Council on Environmental Quality, presidential memoranda, and Secretarial Orders. ESA policy continues to evolve, with multiple recent changes to guidance, proposed regulations, and direction for ESA implementation. 4.3 ESAÂ ComplianceÂ OptionsÂ Given their large service areas that can intersect with the range of many protected species, DOTs are commonly confronted with ESA compliance needs. While this chapter is focused on introducing transportation agencies to proactive and voluntary ESA compliance strategies typically found under Section 10 (an applicant-led process), both Section 7 (a federal agency-led process) and Section 10 processes are summarized in order to provide information on the differences between the two strategies. To facilitate consideration of ESA compliance options throughout the rest of this chapter, the primary ESA compliance strategies are summarized in Table 4-1, with the key features of each. ThreatenedÂ species:Â AnyÂ speciesÂ likelyÂ toÂ becomeÂ anÂ endangeredÂ speciesÂ withinÂ theÂ foreseeableÂ futureÂ throughoutÂ allÂ orÂ aÂ significantÂ portionÂ ofÂ itsÂ range.Â EndangeredÂ species:Â AnyÂ speciesÂ inÂ dangerÂ ofÂ extinctionÂ throughoutÂ allÂ orÂ aÂ significantÂ portionÂ ofÂ itsÂ range.Â Â
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-5 Table 4-1. Permit, process, length of time to prepare, and assurances associated with voluntary ESA compliance strategies. ESAÂ ComplianceÂ StrategyÂ PermitÂ ProcessÂ LengthÂ ofÂ TimeÂ toÂ Prepare*Â FormalÂ AssurancesÂ SafeÂ HarborÂ AgreementÂ (SHA)Â Enhancementâ ofâSurvivalÂ Permit;Â SectionÂ 10(a)(1)(A)Â SHAÂ isÂ preparedÂ byÂ theÂ propertyÂ owner(s)Â withÂ theÂ aidÂ ofÂ USFWS.Â 6Â toÂ 9Â monthsÂ althoughÂ moreÂ complexÂ agreementsÂ areÂ expectedÂ toÂ takeÂ longerÂ Yes,Â propertyÂ ownersÂ receiveÂ assurancesÂ theyÂ willÂ notÂ haveÂ toÂ changeÂ managementÂ activities.Â RecoveryÂ CreditingÂ SystemÂ (RCS)Â SectionÂ 7;Â generatedÂ creditsÂ becomeÂ theÂ mitigationÂ actionsÂ requiredÂ forÂ incidentalÂ takeÂ RCSÂ isÂ preparedÂ byÂ theÂ federalÂ applicantÂ andÂ propertyÂ owner(s)Â withÂ USFWSÂ determiningÂ whetherÂ aÂ systemÂ providesÂ aÂ netÂ benefitÂ toÂ theÂ conservationÂ ofÂ coveredÂ species.Â UndefinedÂ Yes,Â generatedÂ creditsÂ mayÂ offsetÂ eitherÂ permanentÂ orÂ temporaryÂ impacts.Â HabitatÂ ConservationÂ PlanÂ (HCP)Â SectionÂ 10(a)(1)(B);Â IncidentalÂ TakeÂ PermitÂ HCPÂ isÂ preparedÂ byÂ theÂ applicant.Â Undefined;Â typicallyÂ 1Â toÂ 3Â years,Â dependingÂ onÂ scopeÂ ofÂ HCPÂ Yes,Â permitÂ authorizesÂ incidentalÂ take.Â CandidateÂ ConservationÂ AgreementÂ (CCA)Â NoÂ permitÂ CCAÂ isÂ preparedÂ byÂ theÂ applicant.Â Undefined;Â subjectÂ toÂ theÂ degreeÂ ofÂ detailÂ inÂ CCAÂ NoÂ regulatoryÂ assuranceÂ isÂ providedÂ againstÂ theÂ possibilityÂ thatÂ additionalÂ measuresÂ willÂ beÂ imposed.Â CandidateÂ ConservationÂ AgreementsÂ withÂ AssurancesÂ (CCAA)Â Enhancementâ ofâSurvivalÂ Permit;Â SectionÂ 10(a)(1)(A)Â CCAAÂ isÂ preparedÂ byÂ theÂ nonâ federalÂ applicant.Â 6Â toÂ 9Â months,Â althoughÂ moreÂ complexÂ agreementsÂ couldÂ takeÂ 1Â toÂ 3Â yearsÂ toÂ getÂ approvedÂ Yes,Â noÂ newÂ restrictionsÂ orÂ conservationÂ obligationsÂ willÂ beÂ imposedÂ onÂ theÂ landownerÂ followingÂ listing.Â PrelistingÂ ConservationÂ SectionÂ 7Â orÂ SectionÂ 10;Â generatedÂ PCAÂ isÂ preparedÂ byÂ theÂ federalÂ orÂ Undefined;Â PCAsÂ areÂ expectedÂ toÂ Yes,Â applicantsÂ areÂ givenÂ theÂ opportunityÂ toÂ haveÂ actionsÂ serveÂ
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-6 ESAÂ ComplianceÂ StrategyÂ PermitÂ ProcessÂ LengthÂ ofÂ TimeÂ toÂ Prepare*Â FormalÂ AssurancesÂ AgreementÂ (PCA)Â creditsÂ areÂ carriedÂ forwardÂ andÂ becomeÂ recognizedÂ mitigationÂ actionsÂ toÂ offsetÂ impactsÂ fromÂ aÂ developmentÂ actionÂ followingÂ speciesÂ listingÂ nonâfederalÂ applicantÂ workingÂ withÂ stateÂ agenciesÂ withÂ assistanceÂ fromÂ USFWS.Â beÂ processedÂ fasterÂ thanÂ CCAAs,Â whichÂ areÂ subjectÂ toÂ moreÂ exactingÂ approvalÂ requirementsÂ asÂ mitigationÂ orÂ aÂ compensatoryÂ measureÂ toÂ offsetÂ impactsÂ inÂ theÂ eventÂ theÂ speciesÂ isÂ eventuallyÂ listedÂ asÂ threatenedÂ orÂ endangeredÂ underÂ theÂ ESA.Â *AdditionalÂ informationÂ providedÂ byÂ theÂ USFWSÂ EcologicalÂ ServicesÂ ProgramÂ regardingÂ theÂ policiesÂ andÂ regulationsÂ forÂ listedÂ ESAÂ complianceÂ strategies,Â includingÂ estimatesÂ ofÂ theÂ lengthÂ ofÂ timeÂ toÂ prepare,Â isÂ availableÂ atÂ http://www.fws.gov/endangeredâspecies.Â 4.3.1 Section 7 If a project has a federal nexus (again, meaning that the project requires a federal permit under some law other than the ESA, or a federal license or funding), the federal agency taking action (i.e., issuing the permit or license, or granting the contracts, leases, easements, rights-of-way [ROWs], or grants-in-aid) is required to comply with Section 7 of the ESA. For linear projects (like most transportation projects), examples of a federal nexus include the U.S. Army Corps of Engineers Clean Water Act Section 404 permitting process for impacts on waters of the United States (which include wetlands), a ROW authorization from the U.S. Forest Service or Bureau of Land Management, or administration of federal funds by FHWA. Section 7 requires the federal agency (sometimes referred to as the action agency), in consultation with the Services, to ensure its action (or, more specifically, the actions of the project sponsor, such as a DOT, directly or indirectly causing modifications to the land, water, or air [50 CFR Â§ 402.02]) will not jeopardize the continued existence of a federally listed species or a species proposed for listing under the ESA. The federal agency also needs to ensure its action will not destroy or adversely modify designated critical habitat for ESA-listed species. Furthermore, Section 7(a)(1) requires the federal action agency to carry out programs to benefit species and habitats protected under the ESA. Typically, at least a portion of this requirement is addressed via the non-federal partnerâs actions that are funded or permitted by the lead federal agency. Complying with the ESA through a federal nexus requires that the Services use a defined timeline for formal consultation. In practice, this results in a much speedier process than the development of a Habitat Conservation Plan (HCP) under Section 10. FormalÂ consultation:Â AÂ processÂ betweenÂ theÂ ServicesÂ andÂ aÂ federalÂ agencyÂ orÂ applicantÂ that:Â (1)Â determinesÂ whetherÂ aÂ proposedÂ federalÂ actionÂ isÂ likelyÂ toÂ jeopardizeÂ theÂ continuedÂ existenceÂ ofÂ listedÂ speciesÂ orÂ destroyÂ orÂ adverselyÂ modifyÂ designatedÂ criticalÂ habitat;Â (2)Â beginsÂ withÂ aÂ federalÂ agencyâsÂ writtenÂ requestÂ andÂ submittalÂ ofÂ aÂ completeÂ initiationÂ package;Â andÂ (3)Â concludesÂ withÂ theÂ issuanceÂ ofÂ aÂ biologicalÂ opinionÂ andÂ incidentalÂ takeÂ statementÂ byÂ eitherÂ ofÂ theÂ twoÂ Services.Â Â InformalÂ consultation:Â AnÂ optionalÂ processÂ thatÂ includesÂ allÂ discussionsÂ andÂ correspondenceÂ betweenÂ theÂ ServicesÂ andÂ aÂ federalÂ agencyÂ orÂ designatedÂ nonâfederalÂ representative,Â priorÂ toÂ formalÂ consultation,Â toÂ determineÂ whetherÂ aÂ proposedÂ federalÂ actionÂ mayÂ affectÂ listedÂ speciesÂ orÂ criticalÂ habitat.Â
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-7 4.3.2 Section 7 Consultation Process The process for consultation under Section 7 is well defined in regulations and guidance. During the informal consultation process, after obtaining a species list from the Service(s) for the proposed Action Area, the federal action agency determines if its action has the potential to affect listed species or critical habitat. The Action Area is all areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action (50 CFR Â§ 402.02). If the action does not have the potential to affect listed species or critical habitat, the ESA compliance process is concluded. If the federal agency determines its action may affect a listed species or critical habitat, consultation with the Services is required. It is important to note that, unlike projects carried out under Section 10, the trigger for consultation under Section 7 is the potential to affect the species rather than take of the species being reasonably certain to occur. For projects with a federal nexus (when there is discretionary federal involvement or control over the action), the ESA requires action agencies to consult or confer with the Services if the project has the potential to affect the species, even when it is unknown whether take is reasonably certain to occur. For actions that may affect listed species, the federal agency (or often the project sponsor, following formal designation of the non-federal representative by the federal agency) prepares a biological evaluation or biological assessment to determine if the listed species and/or critical habitat would be adversely affected. Biological assessments are required for major construction activities, which include dams, buildings, pipelines, roads, water resource developments, channel improvements, and other such projects that modify the physical environment and that constitute major federal actions (50 CFR Â§ 402.12; 50 CFR Â§ 402.02). If the agency determines the proposed action is not likely to adversely affect the listed species and/or critical habitat (that is, the effects would be discountable, insignificant, or beneficial), and the Service(s) concurs with that determination, the ESA consultation process is concluded (this is referred to as informal consultation) and the action agency may proceed with the action as proposed. At the completion of informal consultation, an action agency may request written concurrence from the Services that the proposed action will have no effect on listed species or critical habitat. Although it is not required, a letter of concurrence is recognized as useful for the administrative record. Rusty Patched Bumble Bee Section 7(a)(2) Federal Project Review The rusty patched bumble bee (Bombus affinis) is the first bumble bee protected under the federal ESA. Photo Credit: Sarina Jepsen, The Xerces Society To help ensure compliance with the requirements under Section 7(a)(2) for federal actions that may affect listed species, the Midwest Region of USFWS developed a four- step approach as part of a voluntary guidance document to help federal action agencies and applicants carry out efficient and effective Section 7(a)(2) consultation relative to the rusty patched bumble bee (Bombus affinis).
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-8 Step 1 â Define the Action Area. Describe the Action Area, recognizing the Action Area is not only the immediate area involved in the action, but also all areas to be affected directly or indirectly by the action (50 CFR Â§ 402.02). Step 2 â Determine whether the rusty patched bumble bee is likely to be present in the Action Area. Consult the USFWS Information for Planning and Consultation website (https://ipac.ecosphere.fws.gov/) or an up-to-date map kept by USFWS with distribution data specifically for the rusty patched bumble bee (https://www.fws.gov/species/rusty-patched-bumble-bee-bombus-affinis). Determine whether the Action Area overlaps with a High Potential Zone for the rusty patched bumble bee. If the Action Area falls within a High Potential Zone and contains suitable habitat, follow the appropriate survey guidance provided by USFWS to confirm presence or absence. Step 3 â Review the action for potential direct or indirect effects. If the rusty patched bumble bee occurs in the Action Area, the action agency will need to determine whether its action may affect the species. The action agency will need to determine if the species will be exposed to one or more stressors associated with the action, and, if exposed, how the species will respond to the relevant stressor(s). When an action may affect the rusty patched bumble bee but is not likely to adversely affect the species, the action agency may request concurrence on that determination from USFWS. Consultation would conclude with the written concurrence of USFWS (50 CFR Â§ 402.13(a)). Step 4 â Incorporate measures to avoid or minimize effects on the rusty patched bumble bee. If the action is likely to adversely affect the rusty patched bumble bee, the action agency is to incorporate conservation measures to remove adverse effects. The recovery plan and recovery implementation strategy, once completed for the rusty patched bumble bee, will provide primary reference for agencies to implement actions that will help it fulfill its Section 7(a)(1) mandate. Until then, USFWS recommends measures taken to address the major conservation needs of the species, as described in the status assessment for the rusty patched bumble bee (https://ecos.fws.gov/ecp/species/9383). Federal agencies are to initiate formal consultation with USFWS if the projectâs conservation measures do not remove all adverse effects. If USFWS anticipates the action will result in incidental take of the species and is not likely to jeopardize the speciesâ continued existence, it will include an incidental take statement with the biological opinion. The incidental take statement will include terms and conditions that the agency must follow to ensure that any take is not a violation of the ESAâs Section 9 prohibitions. Link to Rusty Patched Bumble Bee Section 7(a)(2) Federal Project Review: https://www.fws.gov/sites/default/files/documents/Section%207%20guidance%20for %20rusty%20patched%20bumble%20bee%20%28Bombus%20affinis%29.pdf If the federal agency determines the proposed action or its interrelated or interdependent actions is likely to adversely affect listed species, the agency needs to request formal consultation with the Service(s). A written request from the action agency to the Service(s) marks the beginning of formal consultation. Note that the federal agency determines how
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-9 applicants are to be involved in the consultation and may designate a non-federal representative, such as the project sponsor (e.g., DOT), to conduct informal consultation on behalf of the agency (50 CFR Â§ 402.13). Throughout the consultation process, however, the ultimate responsibility for Section 7 compliance remains with the federal agency and the Services will not work directly with or take comments directly from the applicant without the knowledge or consent of the action agency (50 CFR Â§ 402.14). A formal consultation includes: ï· a description of the action being considered, ï· a description of the specific area and any listed species or critical habitat that may be affected by the action, ï· description of the manner in which the action may affect any listed species or critical habitat, including analysis of any cumulative effects, and ï· relevant reports, such as environmental impact statements (EIS), environmental assessments (EA), biological assessment, and other relevant studies. In total, and without any allowable extensions, 135 days is the statutory guideline for completing Section 7 consultation. ï· Within 90 days of receipt of all information required to complete formal consultation, the Service(s) must complete consultation with the agency and provide a draft biological opinion to the agency for review. The draft biological opinion consists of a description of the proposed action, status of the species and/or critical habitat, environmental baselines, effects of the action(s), cumulative effects, conclusion, and alternatives, as appropriate. ï· The Services have 30 days from receipt of all information for the consultation process to determine if the information is complete enough to proceed. ï· Within the next 45 days, the federal agency or the designated project applicant has the opportunity to provide comments to the Service(s) on the draft biological opinion. Then, the Service(s) will issue the final biological opinion. The biological opinion will reflect the Service(s)âs determination of whether the action would jeopardize the continued existence of a species or adversely modify critical habitat (known as a jeopardy finding). ï· If a jeopardy finding is made, the Service(s) must recommend reasonable and prudent alternatives that would avoid jeopardy and that the federal agency must implement prior to taking action. ï· If no jeopardy finding is made, the Service(s) will issue an incidental take statement with the biological opinion. If incidental take is anticipated, the agency or the applicant must comply with the reasonable and prudent measures identified in the biological opinion and implement terms and conditions in the Servicesâ incidental take statement to avoid potential liability for any incidental take.
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-10 4.3.3 Single Project versus Programmatic The formal and informal Section 7 consultation processes can be applied to either a single defined project or a suite of projects (i.e., a program). When applied to a program, the consultation is referred to as programmatic. If there are multiple projects within an area and they will all potentially affect a listed species, a programmatic consultation can achieve several objectives with positive administrative benefits for all parties. Equally, a programmatic consultation can be used to clear certain project typesâsuch as sidewalk repair or construction, pavement milling, and resurfacingâthat are recognized as minor projects implemented by transportation agencies that the Services can evaluate collectively for their likelihood to adversely affect a species. A programmatic approach streamlines the procedures and time involved in consultations for numerous similar activities with predictable effects on listed species and/or critical habitat in a particular geographic area, thus reducing the amount of time spent on individual project-by-project consultations and maximizing the flexibility to modify project designs early on in the project design phase. Although it may initially take more time to ensure early coordination among agencies and gather data for all the activity types that need to be included under the program, workloads are streamlined under a programmatic approach compared to consulting on each project separately. Under programmatic consultations, the effects analysis for a suite of activities exposed to a set of applicable stressors is completed up front in the biological evaluation or biological assessment and programmatic consultation response document, allowing for reduced project-specific review. Resulting programs guide implementation of future actions by establishing standards, guidelines, or governing criteria to which future actions must adhere. At the project-specific consultation stage, a proposed activity is reviewed to determine if it can be implemented in accordance with the programmatic consultation. From a conservation perspective, one of the great advantages of doing programmatic consultations is that consultations generally involve development of a conservation strategy or program defined in the biological opinion with design criteria based on the needs of the species rather than attempting to build the needs of the species into individual development projects. Establishing the conservation recommendations and terms and conditions written into the biological opinions typically requires ongoing communication and coordination between transportation agencies and the Services. Given many transportation projects involve a federal agency, the ability to develop a conservation strategy for a listed species or suite of species is typically a readily available route for DOTs, with the biological opinions often being referenced in future contract documents to ensure contractor compliance on development projects. 4.3.4 Section 10 In cases where no federal nexus exists, such as when a private landowner (or state agency) is planning an activity that will incidentally take a listed animal species and the landowner or state agency neither needs a federal permit under some law other than the ESA nor receives federal funding for that activity, species take tied to the proposed activity is permitted through the Section 10 process. Section 10 was created in 1982 after Congress, recognizing the need for a process to reduce conflicts between listed species and economic development, amended the ESA to add an exemption for incidental take of listed species that would result from non-federal activities (Section 10(a)(1)(B)). Incidental take is that incidental to, and not the purpose of, carrying out an otherwise lawful activity. To obtain a
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-11 permit for such take under this provision, an applicant must develop a conservation plan that meets specific requirements identified in Section 10(a)(2)(A) of the ESA and its implementing regulations. These habitat conservation plans have become known as HCPs. The permits obtained through this process are known as incidental take permits and allow the permit holder to legally proceed with an activity that would otherwise result in the unlawful take of a listed species. 4.3.5 Habitat Conservation Plans HCPs are a means for non-federal entities to obtain a permit to incidentally take listed species by providing for actions that minimize and mitigate the impact. HCPs describe the anticipated effects of the proposed taking, how those impacts are to be minimized or mitigated, and how the HCP is to be funded. HCPs can apply to both listed and non-listed species, including those that are candidates or have been proposed for listing. HCPs are required to meet the permit issuance criteria of Section 10(a)(2)(B) of the ESA, such that, (1) taking will be incidental (that is, take of listed fish or wildlife species that results from, but is not the purpose of, carrying out an otherwise lawful activity conducted by a federal agency or applicant [50 CFR Â§ 402.02]), (2) the applicant will, to the maximum extent predictable, minimize and mitigate the impacts of the taking, (3) the applicant will ensure that adequate funding for the plan will be provided, (4) taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild, and (5) other measures, as required by the Secretary, will be met. An HCP can include plants and provide take authorization to a DOT. HCPs can be used by transportation administrators and planners to develop conservation strategies to address impacts on at-risk and listed pollinator species from transportation projects, such as new road construction, road widening, or road alignment activities, recognizing such activities may result in both permanent and temporary impacts. HCPs can vary in size, complexity, and duration. HCPs can be project specific with relatively short preparation times and permit durations (often less than 3 years), or they can be regional and programmatic (i.e., developed to cover multiple projects), typically taking more time to prepare but addressing a greater permit duration (30 years is typical) and scope. Project- specific HCPs can often qualify as low-effect HCPs (see Valley Elderberry Longhorn Beetle Low-Effect HCP example). Low-effect HCPs must have minor or negligible effects on the species and their habitats covered under the HCP and qualify for a categorical exemption under NEPA. NEPA applies to all âmajor federal actions,â a term that has generally been determined to include both those actions that a federal agency directly undertakes and those actions proposed by non-federal entities that require federal funding or approval. Issuance of an incidental take permit under Section 10 of the ESA is a federal action subject HCPsÂ canÂ helpÂ toÂ createÂ conservationÂ plansÂ forÂ atâriskÂ pollinatorsÂ thatÂ willÂ beÂ affectedÂ byÂ DOTÂ activitiesÂ suchÂ asÂ constructionÂ projects.Â PhotoÂ Credit:Â WashingtonÂ DOT/FlickrÂ CCÂ
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-12 to compliance with NEPA. As a result, USFWS or NMFS need to conduct a NEPA review and prepare an EA or EIS as part of the process of issuing an incidental take permit. Valley Elderberry Longhorn Beetle Low-Effect HCP (Yolo County, California) Valley elderberry longhorn beetle Photo Credit: Robin Agarwal, Flickr CC In Yolo County, California, the Sacramento Regional County Sanitation District was issued a Section 10(a)(1)(B) permit for the incidental take of two species federally listed as threatened, the valley elderberry longhorn beetle (Desmocerus californicus dimorphus) and giant garter snake (Thamnophis gigas), from covered activities described in the sanitation districtâs low-effect HCP. As described in the HCP, potential taking would occur incidental to construction of a new flood-protection levee and raised all-weather access road around an existing pump station within a 136.4-acre project site. The permit covers a period of 5 years and the HCP provides measures for avoiding and minimizing adverse effects on the valley elderberry longhorn beetle and giant garter snake for activities associated with construction of the new levee and road. The HCP summarizes information about the project and identifies responsibilities of USFWS and the sanitation district for implementing actions to benefit both threatened species. Proposed mitigation measures include purchase of valley elderberry longhorn beetle credits from a USFWS- approved conservation bank, transplanting of removed elderberry shrubs to the conservation bank, and restoration of temporarily affected upland giant garter snake habitat to pre-project conditions within the same calendar year of the impacts. It was determined by USFWS that the proposed project and mitigation measures would individually and cumulatively have a minor or negligible effect on the species covered in the HCP and therefore issuance of the incidental take permit qualifies as a categorical exclusion under NEPA. Link to proposed Low-Effect HCP information: https://www.federalregister.gov/documents/2016/06/20/2016-14567/proposed-low- effect-habitat-conservation-plan-for-the-valley-elderberry-longhorn-beetle-and-giant When it comes to developing HCPs, DOTs need to consider ESA compliance options relative to short- and long-term needs and goals. Different compliance options present distinct challenges, including intra-organization coordination, identification of appropriate decision makers, and management of contractors. Taking the necessary time at the beginning to thoroughly plan how the HCP will be developed and ultimately implemented is wise. A common understanding between the Services and the applicant needs to be developed with regard to the needs and goals of each, as well as their respective planning processes. Spending the time up front to develop a realistic schedule for development of the HCP and identifying key milestones goes a long way to eliminating misunderstanding and future conflicts during the planning process. Additionally, having a simple checklist of the specific information needs of the Services to complete the biological opinion, make findings, and issue permits is helpful when getting started on HCP development.
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-13 An HCP is one of the most comprehensive tools available to transportation planners and provides partnering agencies with incidental take privileges for multiple covered species. HCPs can involve localized areas with only one or a few partners or cover large geographic areas (e.g., statewide or multistate HCP) and involve dozens of partners, including both public and private landowners, working across an extensive landscape. Under an HCP, conservation measures adopted for ROWs that lead to improved conditions for covered species and offset both the permanent and temporary impacts associated with road construction and maintenance could include the purposeful creation of habitat corridors through woodlands or shrub-dominated landscapes, increases in the use of native plants in managed areas, or maintenance of a shifting mosaic of suitable habitat through coordinated management of the greater regional landscape (see Karner Blue Butterfly Statewide HCP example). Karner Blue Butterfly Statewide HCP (Wisconsin) Activities covered under the Wisconsin HCP help to implement disturbance needed for conservation of the Karner blue butterfly. Photo Credit: Joel Trick, USFWS This HCP is the first statewide habitat conservation plan developed in the nation and ensures the continued existence of the Karner blue butterfly (Lycaeides melissa samuelis) on more than 260,000 acres of land in Wisconsin. The Wisconsin Department of Natural Resources led the effort to develop the HCP in cooperation with a diverse group of 26 partners, including major forestry stakeholders, conservation organizations, county forests, utility companies, private landowners, and the Wisconsin Departments of Agriculture and Transportation. The Karner blue butterfly requires its habitat to be disturbed periodically and, under the HCP, landowners can manage their activities by disturbing habitat in ways that benefit the species. In the absence of disturbance activities, such as fire, grazing, or mowing, shrubs and trees invade the open savanna and barrens and shade out the grass and herbaceous plants, including wild lupine (Lupinus perennis), which is the only plant the Karner caterpillar is recognized to feed on, and is thus critical to the butterflyâs survival. Lands supporting the Karner blue butterfly include ROWs, abandoned agricultural fields, managed forest lands, military training areas and bombing ranges, and managed and unmanaged barrens, savannas, and prairie areas that support wild lupine plants. Conservation measures described in the statewide HCP include changing the timing of mowing and herbicide applications to the fall to protect the plants used by the butterflies, creating habitat corridors linking Karner blue butterfly sites, and maintaining a shifting mosaic of suitable habitat for the butterfly throughout the landscape. Link to Karner Blue Butterfly Statewide HCP: https://dnr.wisconsin.gov/topic/endangeredresources/karner/determine
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-14 Agreed-upon conservation measures implemented through an HCP could allow for both incidental take tied to construction activities and cover of management activities in ROWs affecting covered species. As a voluntary compliance strategy, HCPs allow for incidental take covering permanent impacts through offsite mitigation actions, such as the purchase of credits from an established mitigation bank, habitat acquisition, dedication of âexcess landâ for conservation to offset permanent impacts on listed species, or restoration of degraded lands on non-federal lands (see Fenderâs Blue Butterfly HCP as an example of the use of offsite mitigation to address local impacts tied to ROWs). Through the creation and implementation of an adaptive management program paired with an identified funding source, HCPs offer the greatest flexibility and long-term assurances to be able to meet the changing needs of covered species in the dynamic landscape associated with road design and construction. Fenderâs Blue Butterfly HCP (Yamhill County, Oregon) Fenderâs blue butterfly Photo Credit: George Gentry, USFWS Fenderâs blue butterfly (Icaricia icarioides fenderi) is federally listed as endangered and only occurs in the Willamette Valley of Oregon. The butterfly is dependent on the presence of its host plant, the federally listed as threatened Kincaidâs lupine (Lupinus oreganus). Fenderâs blue butterflies lay eggs only on Kincaidâs lupine and the young caterpillars remain on the lupine to feed. Both Fenderâs blue butterfly and Kincaidâs lupine are listed under the ESA and covered under the countywide Yamhill County HCP, as both the butterfly and lupine could be affected by the countyâs road maintenance activities. The incidental take permit tied to the HCP allows the county to continue to perform its otherwise lawful road maintenance activities, which have the potential to affect the covered species. Specific conservation measures identified in the HCP to support the long-term viability of both species were designed to be compatible with needed county road maintenance activities; with implementation, they will reduce the potential adverse effects of covered activities on the two species and mitigate unavoidable adverse effects within the HCP area. Specific conservation measures include establishing special maintenance zones at locations within the county ROWs known to support Fenderâs blue butterfly and Kincaidâs lupine; establishing procedures and protocols for maintenance activities occurring within special maintenance zones; implementing avoidance and minimization measures for road maintenance activities in the county ROWs to reduce potential effects on the covered species and their habitat; enhancing upland prairie habitat within no-impact zones in the county ROWs; and restoring and managing Fenderâs blue butterfly habitat at offsite locations to promote restoration of upland prairie habitat. Link to Fenderâs Blue Butterfly HCP: https://yamhillswcd.org/resources-information/habitat-conservation-plan/
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-15 Required Elements of an HCP To receive an incidental take permit, the applicant is required to submit an HCP that includes the following content: ï· an assessment of impacts likely to result from the proposed taking of the species for which permit coverage is requested, ï· measures that the permit applicant will undertake to monitor, minimize, and mitigate for such impacts, ï· funding available to implement such measures, ï· procedures to deal with unforeseen or extraordinary circumstances, ï· alternative actions considered that would not result in take and the reasons why the applicant did not adopt such alternatives, and ï· additional measures USFWS may require as necessary or appropriate for purposes of the plan. Although close coordination with the Services during HCP development is always a good idea, an HCP is an applicantâs document, and development of the HCP is the responsibility of the applicant and not the Services. Because issuance of the incidental take permit constitutes a federal action, it is subject to NEPA review (specifically, cumulative effects analyses that take into consideration not just the impacts associated with taking a covered species but also impacts on other aspects of the human environment). The NEPA document is the responsibility of the Services. The Services are also required to perform internal consultation (i.e., intra-agency Section 7 consultation) and prepare a biological opinion (that includes the opinion of the Services as to whether a federal action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat) and findings document that present the basis for the incidental take permit decision. 4.3.6 Assurances under Section 10 A key component of ESA compliance under Section 10 is the assurances afforded to the Section 10 permit holders. Called No Surprises, these assurances provide regulatory and financial certainty associated with implementing the terms and conditions of the HCP (50 CFR Â§ 17.22(b)(5)). The No Surprises rule has two major components: changed circumstances and unforeseen circumstances. ï· Changed circumstances are defined as changes in circumstances affecting a species or geographic area covered by an HCP that can be reasonably anticipated and planned for during writing of the HCP (50 CFR Â§ 17.3). If circumstances change during implementation of the HCP and additional conservation and mitigation measures are deemed necessary to respond to those changes, and such measures were provided for in the HCP, the permittee will be required to implement such measures. ï· Unforeseen circumstances are defined as changes in circumstances affecting a species or geographic area covered by a conservation plan that result in a substantial and adverse change in the status of the covered species that could not have reasonably been anticipated by the developers of the plan and the Services at the time of the negotiation
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-16 and development of the plan (50 CFR Â§ 17.3). Under the No Surprises rule, if unforeseen circumstances occur that adversely affect covered species, the Services will not require the commitment of additional land, water, or financial compensation or impose additional restrictions on the use of land, water, or other natural resources beyond the level otherwise agreed to in the HCP without the consent of the permit holder as long as the HCP and the incidental take permit are being properly implemented. 4.3.7 Benefits and Tradeoffs of Complying through Section 7 or Section 10 In many cases, the project proponent will have limited or no federal nexus and, therefore, no choice regarding whether to comply with the ESA through Section 7 or Section 10. However, in some cases, both compliance pathways are an option. In these cases, there are benefits and tradeoffs with each approach (summarized in Table 4-2). First, compliance through the Section 7 process is almost always faster, as it is a more systematic process driven by mandated schedules and guidelines, with responsibilities to see the process through to the end ultimately falling on the Services and the federal action agency. The Section 10 process with an HCP typically takes longer to complete than a Section 7 consultation, but it provides the applicant with more control of the outcome. The HCP is the applicantâs document, so the applicant can control its content and approach. In addition, the Section 10 permit process allows for coverage of non-listed species under an HCP and provides No Surprises assurances throughout the duration of the permit. This can be advantageous for long-term planning. Species likely to become listed during the duration of the permit, if covered by the HCP, require no new restrictions if listing occurs, as long as the permittee is properly implementing the HCP and incidental take permit. No Surprises assurances are not available under Section 7. Also, the Cooperative Endangered Species Conservation Fund (Section 6 of the ESA) is a tool that provides substantial grants to support HCP planning, which are available for Section 10 but not Section 7 processes. Table 4-2. Comparison of ESA compliance under Section 7 versus Section 10. PointÂ ofÂ ComparisonÂ SectionÂ 7Â SectionÂ 10Â TriggerÂ forÂ engagementÂ ProposedÂ projectÂ mayÂ affectÂ aÂ listedÂ speciesÂ (consultationÂ isÂ mandatory).Â UnderÂ theÂ proposedÂ project,Â takeÂ ofÂ aÂ listedÂ speciesÂ isÂ reasonablyÂ certainÂ toÂ occurÂ (processÂ isÂ voluntary,Â althoughÂ complianceÂ withÂ theÂ ESAÂ isÂ mandatoryÂ andÂ theÂ ServicesÂ mayÂ initiateÂ anÂ enforcementÂ actionÂ ifÂ theyÂ haveÂ reasonÂ toÂ believeÂ thatÂ theÂ ESAÂ isÂ beingÂ violated).Â ApplicabilityÂ FederalÂ actionÂ agencies,Â inÂ consultationÂ withÂ USFWS,Â mustÂ ensureÂ theirÂ actionsÂ wouldÂ notÂ jeopardizeÂ theÂ continuedÂ existenceÂ ofÂ aÂ federallyÂ listedÂ speciesÂ orÂ aÂ speciesÂ proposedÂ forÂ listingÂ underÂ theÂ ESAÂ orÂ destroyÂ AppliesÂ toÂ nonâfederalÂ entitiesÂ conductingÂ anÂ otherwiseÂ lawfulÂ activityÂ throughÂ whichÂ takeÂ isÂ reasonablyÂ certainÂ toÂ occur.Â TheÂ HCPÂ canÂ applyÂ toÂ nonâlistedÂ speciesÂ andÂ includesÂ assurances.Â
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-17 PointÂ ofÂ ComparisonÂ SectionÂ 7Â SectionÂ 10Â orÂ adverselyÂ modifyÂ criticalÂ habitat.Â ProcessÂ InformalÂ orÂ formalÂ consultationÂ withÂ USFWSÂ isÂ initiatedÂ byÂ theÂ federalÂ actionÂ agencyÂ andÂ typicallyÂ followsÂ aÂ preparationÂ ofÂ aÂ biologicalÂ evaluationÂ orÂ biologicalÂ assessmentÂ byÂ theÂ applicantÂ forÂ theÂ actionÂ agency.Â TheÂ HCPÂ isÂ preparedÂ byÂ theÂ applicantÂ andÂ followsÂ theÂ applicant'sÂ timelineÂ duringÂ theÂ preâapplicationÂ processÂ andÂ developmentÂ ofÂ theÂ HCP.Â TimelineÂ UndefinedÂ forÂ informalÂ consultation,Â althoughÂ typicallyÂ 30â90Â days,Â recognizingÂ aÂ 60âdayÂ timelineÂ existsÂ forÂ concurrenceÂ followingÂ receiptÂ ofÂ anÂ adequateÂ writtenÂ request;Â definedÂ timelineÂ onceÂ formalÂ consultationÂ isÂ initiatedÂ (upÂ toÂ 135Â days).Â Undefined.Â Typically,Â itÂ takesÂ 1Â toÂ 3Â yearsÂ dependingÂ onÂ theÂ scopeÂ ofÂ theÂ plan.Â PermitÂ andÂ AssurancesÂ IncidentalÂ takeÂ statementÂ doesÂ notÂ includeÂ regulatoryÂ assurances;Â termsÂ andÂ conditionsÂ determinedÂ byÂ USFWS,Â inÂ consultationÂ withÂ theÂ actionÂ agencyÂ andÂ applicant;Â reinitiationÂ ofÂ consultationÂ isÂ alwaysÂ possible.Â PermitÂ conditionsÂ negotiatedÂ betweenÂ theÂ ServicesÂ andÂ theÂ permitÂ applicant.Â NoÂ SurprisesÂ assurancesÂ providedÂ soÂ USFWSÂ cannotÂ requireÂ additionalÂ resourcesÂ (includingÂ additionalÂ commitmentÂ ofÂ land,Â water,Â orÂ financialÂ resourcesÂ orÂ additionalÂ restrictionsÂ beyondÂ theÂ levelÂ otherwiseÂ agreedÂ onÂ inÂ theÂ HCP)Â ofÂ theÂ applicantÂ toÂ addressÂ unforeseenÂ circumstancesÂ withoutÂ theÂ consentÂ ofÂ theÂ permittee.Â ESAÂ SectionÂ 6Â FundingÂ Â No.Â Yes,Â grantsÂ areÂ availableÂ throughÂ aÂ competitiveÂ processÂ toÂ supportÂ theÂ developmentÂ ofÂ HCPsÂ andÂ acquireÂ landÂ associatedÂ withÂ approvedÂ HCPs.Â NEPAÂ TriggeredÂ byÂ theÂ federalÂ actionÂ agencyÂ thatÂ isÂ consultingÂ withÂ USFWS;Â federalÂ actionÂ agencyÂ preparesÂ theÂ NEPAÂ reviewÂ documentÂ (EISÂ orÂ EA).Â PublicÂ participationÂ isÂ anÂ integralÂ partÂ ofÂ proceduralÂ requirements.Â TriggeredÂ byÂ theÂ ServicesâÂ consideration/issuanceÂ ofÂ anÂ incidentalÂ takeÂ permit.Â TheÂ ServicesÂ prepareÂ theÂ NEPAÂ reviewÂ document.Â PublicÂ participationÂ isÂ anÂ integralÂ partÂ ofÂ proceduralÂ requirements.Â
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-18 4.4 OtherÂ VoluntaryÂ ESAÂ ComplianceÂ StrategiesÂ In addition to HCPs, other voluntary strategies exist to address ESA compliance (see Table 4-1 for a summary). An enhancement-of-survival permit is available under Section 10 of the ESA for entities whose activities will provide a net conservation benefit to listed species or species that are candidates for listing. Typically, these permits are pursued by landowners who may be otherwise reluctant to undertake activities that support or attract listed species to their properties, or entities planning a project with concerns about risk of taking a candidate species that may be listed during project implementation due to fear of future restrictions related to the ESA. To address these concerns, two agreements are available to transportation agencies to provide the needed assurances that future restrictions or property-use limitations will not occur without their consent: (1) a Safe Harbor Agreement (SHA) for species that are already listed, or (2) a Candidate Conservation Agreement (CCA) with Assurances (CCAA) for candidate species. These agreements are also considered by the Services when making listing decisions and may help to prevent a listing or encourage a delisting or down-listing. 4.4.1 Safe Harbor Agreement A SHA is a voluntary agreement involving private or other non-federal property owners whose actions taken under a SHA are recognized by USFWS to provide a net conservation benefit contributing to the recovery of species listed as endangered or threatened under the ESA. Under a SHA, property owners receive formal assurances from USFWS through an enhancement-of-survival permit issued under the authority of Section 10(a)(1)(A) of the ESA that land use restrictions will not be required even if voluntary actions taken under the agreement attract particular listed species onto enrolled properties or increase the numbers or distribution of those listed species already present on those properties. The enhancement-of-survival permit authorizes incidental take of species that may result from actions undertaken by the landowner under the SHA, which would include returning the property to baseline conditions at the conclusion of the agreement. As SHAs do not require permanent conservation for enrolled properties but do provide opportunities for landowners to test and develop new habitat-management techniques, the SHA is a compliance strategy to be considered for application in ROWs by transportation agencies interested in adopting new management practices aimed at maintaining, restoring, or enhancing existing habitats; reducing habitat fragmentation; or increasing habitat connectivity on behalf of listed species found on or adjacent to their properties. The USFWS Ecological Services Program recognizes many SHAs can be developed within 6 to 9 months, although more complex agreements may take longer. When estimating the timeline for approval, a number of considerations need to be made, including the number and characteristics of the species involved, management activities being considered, number of parties to the agreement, and whether the SHA and permit decision may be eligible for categorical exclusion under NEPA (42 U.S.C. 4321 et seq).
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-19 Willamette Valley Native Prairie Habitat Programmatic Safe Harbor Agreement for the Fenderâs Blue Butterfly Fenderâs blue butterfly Photo Credit: George Gentry, USFWS This programmatic SHA provides eligible landowners with a streamlined process for obtaining assurances that certain actions taken to benefit the federally listed Fenderâs blue butterfly will not result in additional regulatory obligations under the ESA. The primary objective of this SHA is to encourage conservation and restoration actions by landowners designed to benefit Fenderâs blue butterfly, the federally listed Kincaidâs lupine, and other native species occurring in open prairie habitat within Willamette Valley in Benton, Lane, Linn, Marion, Polk, and Yamhill Counties in Oregon. Activities anticipated to produce a net conservation benefit for the Fenderâs blue butterfly to be undertaken by participating landowners include: ï· restoration activities that result in an open community structure, ï· promoting healthy populations of host and nectar plants unencumbered by overtopping shrubs, trees, or tall exotic grasses, and ï· management actions, such as the manual and mechanical removal of invasive exotic plants and woody vegetation, and, in certain circumstances, chemical applications and the use of prescribed fire, designed to maintain an open, prairie structure ensuring the vigor of obligate lupine host plants and other native nectar plants. Eligible properties for enrollment include non-federal lands where the butterfly occurs or could occur through colonization, translocation, or reintroduction. Non-federal landowners interested in participating are recognized as âCooperatorsâ through Certificates of Inclusion under the SHA. The SHA is administered and implemented by the USFWS Oregon Fish and Wildlife Office (OFWO) and Willamette Valley National Wildlife Refuge Complex (WV Refuge Complex). The OFWO is the designated âPermitteeâ and the WV Refuge Complex is a signatory that works jointly with the OFWO in all aspects of the SHA. The OFWO, WV Refuge Complex, and participating landowners are all parties to the SHA. This SHA follows USFWSâs Safe Harbor Agreement policy (64 Federal Register 32717) and regulations (64 Federal Register 32706), both of which implement Section 10(a)(1)(A) of the ESA. Link to information on Willamette Valley Native Prairie Habitat Programmatic Safe Harbor Agreement for the Fenderâs Blue Butterfly: https://www.fws.gov/federal-register-document/proposed-willamette-valley-native- prairie-habitat-programmatic-safe
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-20 4.4.2 Candidate Conservation Agreement with Assurances Another compliance strategy for transportation planners to consider when planning for activities to be completed within ROWs is a CCAA addressing species proposed for listing or candidates for listing on non-federal land. A CCAA results in an enhancement-of- survival permit, issued under Section 10(a)(1)(A) of the ESA, which provides assurance to the applicant that if agreed-upon conservation actions for the covered species are implemented, USFWS will not require additional conservation measures beyond those in the CCAA should the species be listed. A CCAA can apply to a single species or multiple species and may vary in size, scope, structure, complexity, and activities addressed. Conservation measures transportation agencies agree to undertake on their lands to remove threats and otherwise improve the status of candidate and other at-risk pollinator species under a CCAA may include actions to: ï· protect and enhance existing populations and habitats, ï· restore degraded habitat, ï· create new habitat, ï· augment existing populations, ï· restore historic populations, or ï· not undertake a specific, potentially affecting/damaging activity, such as deciding not to move forward with planned construction of an approved road extension. The duration of a CCAA needs to be sufficient to enable USFWS to determine that the benefits of the conservation measures in the CCAA provide a net conservation benefit to the covered species and remove any need to list the species covered by the agreement, when combined with those benefits that would be achieved if it is assumed the conservation would also be implemented on other necessary properties. Similar to a SHA, a CCAA can be renewed for as long as the property landowner and USFWS both agree. Both existing SHAs and CCAAs are considered by the Services when making listing decisions and may help to prevent a listing or encourage a delisting or down-listing. 4.4.3 Candidate Conservation Agreement Although they do not lead to a permit, CCAs are formal, voluntary agreements between USFWS and one or more parties created to address the conservation needs of one or more candidate species or species likely to become candidates in the near future. Although CCAs are primarily developed by federal agencies to cover federal lands, USFWS often enters into CCAs with other federal agencies but recognizes the value of partnering on agreements with states, local governments, tribes, private property owners, and other entities. Agreements can apply to a single species or multiple species and may vary in size, scope, structure, complexity, and activities addressed. USFWS recognizes early conservation efforts for declining species can be greatly expanded through collaborative approaches that foster cooperation and exchange of ideas among multiple parties. For large-scale transportation projects wherein the effects of thoughtful roadside management practices benefiting native pollinators occurring on non-federal lands could be strengthened from similar actions taken on adjoining federal properties, such as a national forest, a CCA can be written to perform the function of an overarching
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-21 conservation plan for a single or multiple at-risk species. The implemented conservation plan would formally serve to link a CCA for federal property together with preventative measures taken under a CCAA implemented on non-federal lands (see Monarch Butterfly Nationwide CCAA with CCA example). Working collaboratively, federal and non-federal participants could voluntarily commit to implement specific actions designed to remove or reduce threats to a covered species across a region characterized by a patchwork of land ownership so that listing may not be necessary. The degree of detail in CCAs can vary widely, and there are no specific permits or assurances associated with them. State involvement is highly desirable, as species that are not listed or proposed for listing are under the jurisdiction of the states. Monarch Butterfly Nationwide CCAA with CCA Monarch butterflies on swamp milkweed (Asclepias incarnata) Photo Credit: Stephanie McKnight, The Xerces Society In 2020, USFWS approved a programmatic CCAA with an integrated CCA for the monarch butterfly (Danaus plexippus). The agreement is a collaborative effort among USFWS and representatives of more than 45 non-federal companies and agencies in the energy and transportation sectors, including those who collectively manage several millions of acres of ROWs and associated lands across the lower 48 states for electric power generation, transmission, and distribution (including solar and wind); oil and gas transport; and transportation (including both roads and railways). Together with approving the agreement, USFWS issued an enhancement-of-survival permit. Through a certificate of inclusion, the partners enrolled in the agreement will create, enhance, and maintain habitat for monarch butterflies, as well as continue their general operations, vegetation management, and maintenance and modernization activities within existing ROWs. If the monarch becomes federally listed and protected under the ESA, the enhancement-of-survival permit will authorize incidental take of monarch butterflies that may result from otherwise lawful activities within ROWs on enrolled lands. By integrating a CCAA and CCA together in the agreement, partners are able to seamlessly implement conservation measures for monarchs on non-federal and federal lands. Conservation measures expected to create, maintain, and enhance monarch habitat include the reduction or removal of threats to the monarch butterfly caused by ongoing operations, maintenance, and modernization activities on ROWs. The agreement allows partners flexibility to strategically place habitat when considering both the conservation needs of the species and the constraints that exist that may limit their ability to apply conservation measures in a given area. To maintain a net conservation
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-22 benefit, each partner must implement selected conservation measures to create and maintain a proportion of their enrolled lands as monarch habitat each year. Link to Monarch Butterfly Nationwide CCAA with CCA: https://www.fws.gov/media/nationwide-candidate-conservation-agreement-monarch- butterfly 4.4.4 Recovery Crediting System A Recovery Crediting System (RCS) is a tool that allows federal agencies to use their authorities to benefit species already listed as threatened or endangered on non-federal lands. Subject to Section 7 consultation, an RCS creates a process through which federal agencies create a âbankâ of recovery credits providing for the conservation of listed species while being able to compensate for future impacts of their actions. As Section 7 applies to management of federal lands as well as other federal actions that may affect listed species (for example, federal approval of private activities through issuance of federal permits, licenses, or other actions such as funding), an RCS is a tool available to state transportation agencies through interagency cooperation. Section 7(a)(2) of the ESA establishes the process whereby federal action agencies, such as the U.S. Forest Service, Bureau of Land Management, or FHWA, and their applicants (e.g., state DOTs) and USFWS work together to ensure appropriate conservation measures are in place so that proposed actions are not likely to jeopardize the continued existence of a listed species or loss of critical habitat. Because of the importance of private lands to the recovery of listed species, the RCS is designed to encourage federal partnerships with non-federal landowners. The process of creating an RCS produces a net conservation benefit for the listed target species that advances its recovery, increases the flexibility of federal agencies to accomplish their missions while meeting their requirements under the ESA, and promotes effective partnership between federal and non-federal entities. The basic unit of measure established by an RCS is a recovery credit. The credit quantifies the contribution an agencyâs action makes toward recovery of a federally listed species. Credits are based on, and tied to, implementation of specific conservation measures or actions identified in a speciesâ approved recovery plan. Criteria used to establish recovery credit values and priorities include long-term habitat preservation or restoration, reduction or elimination of specific threats, support for controlled propagation and reintroduction efforts, benefits to multiple species, and establishment of dispersal corridors. Available to transportation planners and administrators, an RCS sets forth a process that allows either permanent or temporary impacts of road construction or maintenance activities to be offset by the creation of credits. Importantly, conservation efforts tied to recovery credits are not site specific, allowing conservation measures to be applied over a large service area. Operating through an RCS, a transportation agency may develop and store a âbankâ of conservation credits that can be used by the agency at a later time to offset negative impacts on listed species due to road construction and operation across a road network covering a large geographic region where a listed species is known or considered to be present. In addition to addressing permanent impacts, an RCS may also offset temporary impacts through the creation of temporary recovery credits. Temporary credits are generated
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-23 through implementation of habitat-management activities identified in the recovery plan of a listed species, but which are discrete or short term in nature. Consistent with identified best management practices for pollinators, a transportation agency could accrue credits for the restoration and temporary protection of degraded habitat along roadsides to mitigate for habitat that will be temporarily affected elsewhere. Because temporary credits offset adverse effects that are also limited in duration, conservation measures associated with the temporary credits must remain in effect for some period of time after the adverse effects of the impacts have been reversed. As transportation projects often require temporary workspaces for construction, which are later returned to pre-construction conditions, earned temporary credits can be applied to address impacts under this scenario, streamlining approval processes for future construction activities associated with a road network. Consultation with USFWS in an RCS occurs largely in two ways: first as an overall programmatic consultation to define and establish credits and debits, and second as individual activities are accounted for at the project level. A primary source of information to establish criteria for an RCS is the speciesâ recovery plan. If no final approved recovery plan exists, an RCS may employ an equivalent USFWS-approved document describing specific measures that will contribute toward the down-listing or delisting goals of a listed species. When considering whether employment of an RCS is a strategy worth pursuing, it is important to note that not all listed species are appropriate for a credit system. Examples of species that would not be suited for an RCS are those whose conservation needs are poorly understood, and species that occur as single-site endemics. 4.4.5 Prelisting Conservation Agreement A Prelisting Conservation Agreement (PCA) allows for the creation and banking of credits providing for the conservation of non-listed species. Anyone (e.g., federal agency or private entity) who wants to participate in the process can undertake a voluntary prelisting conservation action, earning credits to be carried forward as long as the action occurs in a participating state within the framework of an established conservation strategy for the species. ï· Transportation agencies participating in a qualifying state-administered species- conservation program can obtain conservation credits for efforts benefiting a species recognized to be in decline. ï· Credits can later be redeemed to offset or mitigate actions detrimental to the same species should it subsequently be listed under the ESA. ï· Earned credits in excess of an agencyâs immediate or projected needs may be traded or sold to other agencies. Conservation actions implemented under a PCA are to be based largely on a conservation strategy for a species developed by the state that principally guides all conservation efforts for the at-risk unlisted species whether conservation actions are implemented by federal, state, tribal, or private organizations. A strategy can be authored by any one of these entities, but ideally it is a collaborative effort, with states playing a primary role and the public participating in the process. Voluntary prelisting conservation actions give a landowner, whether federal or non-federal, the opportunity to have actions taken to benefit at-risk species serve as mitigation or a compensatory measure for the detrimental impact
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-24 of an action undertaken after the species is listed as threatened or endangered. A PCA provides states with an additional tool and incentive to engage landowners, government agencies, and others in carrying out voluntary conservation actions for species not listed under the ESA. USFWS treats voluntary prelisting conservation actions as (1) an intended compensatory measure of a proposed federal agency subject to the consultation requirements of Section 7(a)(2) or 7(a)(3) of the ESA, or (2) a measure to minimize and mitigate the impact of the taking of an endangered or threatened species pursuant to Section 10(a)(1)(B) of the ESA. To be treated as a voluntary prelisting conservation action under an agreement, the action need only be beneficial to a particular species. No specific magnitude of benefit needs to be identified. Credits are to be used within a âservice areaâ based on the biological needs of the species. A âservice areaâ may include more than one state. A PCA is a tool available for DOTs to generate credits prior to a species being listed. Following listing, the opportunity to create additional conservation credits can be pursued through actions undertaken under an RCS or HCP. 4.4.6 Conservation Banks Conservation banks are worth mentioning, as they serve to address the effects of multiple activities on species and provide an opportunity for transportation agencies to take advantage of âexcess landâ that consists of real property rights, title to which is vested in the state DOT and that is determined and certified to be not required for ROWs or other operational purposes of the department. Conservation banks are permanently protected privately or publicly owned lands managed for endangered, threatened, and other at-risk species (see Delhi Sands Flower-Loving Fly Conservation Bank example). Banks compensate for adverse impacts on a listed species in advance of the impact based on the establishment of a permanent benefit (i.e., conserving the speciesâ habitat) typically accomplished through offsite land set-asides, which leads to the creation of credits for use or sale. Both HCPs and RCS can be strengthened by the creation of banks for listed species. Equally, the effectiveness of CCAAs and PCAs could be improved by land set-asides for at- risk species. Delhi Sands Flower-Loving Fly Conservation Bank (Colton, California) Delhi sands flower-loving fly Photo Credit: Moose Peterson, USFWS A 150-acre conservation bank in Colton, California, aids in the recovery of the federally listed as endangered Delhi Sands flower-loving fly (Rhaphiomidas terminatus abdominalis). This unique species, native to the Inland Empire of Southern California, is the first and only fly to be listed under the ESA. Scientists petitioned the species in 1990 and USFWS listed it as endangered in 1993. The Delhi Sands habitats are highly unusual and are not found anywhere else on Earth. Protection of the fly is important, in part, because it will protect many other species also living in the dunes. The dunes
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-25 support birds like the western meadowlark (Sturnella neglecta) and the burrowing owl (Athene cunicularia), mammals like the Los Angeles pocket mouse (Perognathus longimembris brevinasus), insects such as a subspecies of the Mormon metalmark butterfly (Apodemia mormo nigrescens), and numerous reptiles and plants. Owned by Vulcan Materials Company, the conservation bank protects the largest remaining contiguous block of habitat for Delhi Sands flower-loving fly. Land in the conservation bank will be conserved and managed in perpetuity through the placement of a conservation easement. Lands enrolled in a conservation bank can be used to offset impacts on species or habitats in areas outside of the bankâs boundaries. The establishment of this 150-acre conservation bank represents one of the most significant steps in securing the future of the Delhi Sands flower-loving fly since it was listed under the ESA. Link to information about the Delhi Sands Flower-Loving Fly: https://ecos.fws.gov/ecp/species/1540 4.4.7 In-Lieu Fee Mitigation Often referenced when considering voluntary options for addressing mitigation needs associated with aquatic resources, the in-lieu fee mitigation framework can provide an alternative to onsite mitigation that streamlines the process of mitigation, allowing for faster, more efficient project delivery for transportation agencies while still maintaining compliance with the requirements of the ESA for protecting the habitat of listed species. In accordance with Section 7(a)(1) of the ESA, transportation agencies working with the Services can use the in-lieu fee mitigation framework to create a mitigation strategy giving them the ability to create and contribute to a fund as their mitigation for unavoidable impacts on listed species. The amount of the contribution, or fee, is tied to the type and severity of the impact the development or maintenance project would be expected to have on the species. Money deposited into the fund is used to improve upon the conservation effort for the species above and beyond what is otherwise possible if funds were being restricted to a specific project location or to a lesser mitigation type. An in-lieu fee program typically combines fees collected from one or more impact projects to finance the mitigation benefiting the listed species. Funds can also be leveraged, and partnering is encouraged to maximize the value of the in-lieu fee mitigation. It is important to recognize this option is not available as part of most onsite mitigation plans and has not been readily applied outside of being used to offset unavoidable impacts on aquatic resources. For this reason, use of this option may require creation of a Memorandum of Understanding between transportation agencies and USFWS or NMFS to better define the overarching mitigation strategy and particulars of contributing to and managing the created mitigation fund. 4.5 WhichÂ ComplianceÂ StrategyÂ toÂ Use?Â Early on in the decision-making process, it is important to recognize that rare and endangered pollinators often have specific habitat requirements, unique life history traits, and other traits that require knowledge of the individual species when making management decisions and evaluating which compliance strategy may ultimately be best suited for the situation. Furthermore, the types of challenges, as well as opportunities, to address ESA
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-26 compliance issues vary by region, major land cover types, type of ROW operations, and types of design, planning, and construction activities. For these reasons and others, recommended strategies and associated management practices or prescriptions usually need to be geographically and condition specific. This guide is intended to provide options for how DOTs can support conservation of at-risk and listed pollinator species through thoughtful management and design. The greatest value in taking a proactive approach to ESA compliance comes when specific management actions and design decisions are paired with discussed compliance strategies. Adoption of practices can lead to cost savings in the form of streamlining of permitting, planning, and design workflow with regard to listed species. Comparison of various levels of effort and certainty gained through development of each approach is of value for transportation agencies to consider when deciding which strategy is best to pursue. Permit, process, duration of time to process, and formal regulatory assurances tied to each strategy (see Table 4-1), together with staff responsibilities and financial costs, are valuable for transportation professionals to understand when making decisions. Other considerations for transportation agencies include risks and potential barriers, with regard to internal challenges tied to staff training; financial constraints; incompatibility with other goals; staff resources; and permit or legal limitations to successful implementation. One of the best recognized sources of information on internal challenges is the transportation professionals most familiar with and with expertise in applying the identified ESA compliance strategies in their own work and region. With regard to their familiarity and experience with the ESA compliance strategies, a number of transportation professionals responding to survey questions (see National Cooperative Highway Research Program Project 25-59 final report for full questions and summarized responses) were familiar with identified strategies (see Table 4-3). However, a smaller percentage had experience actually applying the strategies in their own work. Additionally, only one respondent considered themselves as an expert in design or planning, the two groups of transportation professionals most likely to benefit from being educated about the different compliance strategies available to transportation agencies. Table 4-3. Familiarity and experience of transportation professionals1 with voluntary ESA compliance strategies. ESAÂ ComplianceÂ StrategyÂ PercentageÂ ofÂ RespondentsÂ FamiliarÂ withÂ theÂ StrategyÂ PercentageÂ ofÂ RespondentsÂ WhoÂ HaveÂ AppliedÂ theÂ StrategyÂ toÂ TheirÂ WorkÂ SafeÂ HarborÂ AgreementsÂ 60%Â (24Â ofÂ 40)Â 4%Â (1Â ofÂ 27)Â RecoveryÂ CreditingÂ SystemÂ 32%Â (12Â ofÂ 38)Â 21%Â (5Â ofÂ 24)Â HabitatÂ ConservationÂ PlansÂ 90%Â (37Â ofÂ 41)Â 42%Â (14Â ofÂ 33)Â CandidateÂ ConservationÂ AgreementsÂ 78%Â (31Â ofÂ 40)Â 27%Â (8Â ofÂ 30)Â CandidateÂ ConservationÂ AgreementsÂ withÂ AssurancesÂ 79%Â (34Â ofÂ 43)Â 36%Â (12Â ofÂ 33)Â
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-27 ESAÂ ComplianceÂ StrategyÂ PercentageÂ ofÂ RespondentsÂ FamiliarÂ withÂ theÂ StrategyÂ PercentageÂ ofÂ RespondentsÂ WhoÂ HaveÂ AppliedÂ theÂ StrategyÂ toÂ TheirÂ WorkÂ PrelistingÂ ConservationÂ AgreementsÂ Â 54%Â (21Â ofÂ 39)Â 14%Â (4Â ofÂ 28)Â 1Â FortyâsevenÂ percentÂ ofÂ respondentsÂ identifiedÂ theirÂ areaÂ ofÂ expertiseÂ withinÂ theirÂ agencyÂ asÂ âEnvironmental,âÂ 27%Â asÂ âMaintenance,âÂ 13%Â asÂ âLandscapeÂ Architecture,âÂ 3%Â asÂ âConstruction,âÂ 1%Â asÂ âPlanning,âÂ andÂ 9%Â asÂ âOther.âÂ NoneÂ ofÂ theÂ receivedÂ responsesÂ wereÂ fromÂ professionalsÂ whoÂ identifyÂ theirÂ areaÂ ofÂ expertiseÂ asÂ âDesign.âÂ 4.5.1 Evaluating ESA Compliance Approaches To inform the process of identifying a preferred strategy, the questions below can be used by planners and designers when first evaluating different proactive approaches to addressing ESA compliance. Specifically, questions are designed to (1) prompt readers to think through proactive strategies that are alternatives to the more traditional Section 7 consultation when dealing with listed species that may be affected by an action such as a building a road, and (2) help inform readers about voluntary strategies to mitigate present- day and future risks to at-risk species. An expanded version of these questions can be found in Appendix A (for listed pollinator species) and Appendix B (for imperiled pollinator species). QuestionsÂ toÂ ConsiderÂ AnswersÂ toÂ HelpÂ GuideÂ DecisionsÂ ForÂ aÂ specificÂ geographyÂ orÂ project,Â areÂ thereÂ multipleÂ listedÂ speciesÂ expectedÂ toÂ beÂ affectedÂ orÂ aÂ singleÂ listedÂ species?Â IfÂ thereÂ areÂ multipleÂ listedÂ species,Â itÂ isÂ ofÂ valueÂ toÂ considerÂ investingÂ inÂ aÂ complianceÂ strategy,Â suchÂ asÂ anÂ HCP,Â whereinÂ differentÂ conservationÂ measuresÂ canÂ beÂ bundledÂ togetherÂ toÂ provideÂ regulatoryÂ coverageÂ forÂ takeÂ ofÂ aÂ numberÂ ofÂ listedÂ speciesÂ underÂ aÂ singleÂ permit.Â AreÂ atâriskÂ pollinatorÂ speciesÂ presentÂ inÂ theÂ planningÂ area?Â Â IfÂ so,Â aÂ CCAAÂ providesÂ assurancesÂ toÂ transportationÂ agenciesÂ whoÂ investÂ earlyÂ inÂ theÂ applicationÂ ofÂ recognizedÂ conservationÂ actions,Â suchÂ asÂ theÂ abandonmentÂ ofÂ anÂ otherwiseÂ onceâplannedÂ roadÂ extension,Â withinÂ aÂ planningÂ areaÂ encompassingÂ aÂ largerÂ roadÂ networkÂ thatÂ benefitÂ singleÂ orÂ multipleÂ pollinatorÂ speciesÂ consideredÂ toÂ beÂ atÂ riskÂ forÂ futureÂ listing.Â WillÂ atâriskÂ speciesÂ possiblyÂ beÂ harmedÂ byÂ futureÂ activities?Â Â IfÂ so,Â byÂ workingÂ withÂ stateÂ andÂ federalÂ agencies,Â aÂ transportationÂ agencyÂ canÂ createÂ creditsÂ underÂ aÂ PCAÂ byÂ implementingÂ conservationÂ measuresÂ benefitingÂ aÂ stateâ recognizedÂ atâriskÂ speciesÂ atÂ selectÂ locationsÂ acrossÂ itsÂ serviceÂ area,Â providingÂ assurancesÂ theÂ agencyÂ willÂ haveÂ theÂ abilityÂ toÂ mitigateÂ forÂ futureÂ impactsÂ onÂ theÂ speciesÂ followingÂ aÂ federallyÂ listing.Â AreÂ listedÂ speciesÂ presentÂ inÂ orÂ adjacentÂ toÂ existingÂ ROWs?Â IfÂ so,Â considerÂ useÂ ofÂ aÂ SHAÂ toÂ provideÂ formalÂ assurancesÂ thatÂ futureÂ landÂ useÂ restrictionsÂ willÂ notÂ resultÂ fromÂ investmentÂ inÂ managementÂ activitiesÂ thatÂ increaseÂ habitatÂ valueÂ and/orÂ theÂ localÂ abundanceÂ ofÂ theÂ listedÂ speciesÂ coveredÂ underÂ theÂ permits.Â
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-28 QuestionsÂ toÂ ConsiderÂ AnswersÂ toÂ HelpÂ GuideÂ DecisionsÂ AreÂ someÂ ofÂ theÂ suggestedÂ changesÂ toÂ maintenanceÂ activitiesÂ toÂ benefitÂ listedÂ pollinatorsÂ alsoÂ viewedÂ asÂ potentialÂ costâsavingÂ measures?Â Â IfÂ so,Â creationÂ ofÂ SHAÂ allowsÂ forÂ transportationÂ agenciesÂ toÂ investÂ inÂ maintenanceÂ activitiesÂ thatÂ mayÂ resultÂ inÂ costÂ savings,Â suchÂ asÂ shiftingÂ theÂ timingÂ andÂ frequencyÂ ofÂ mowing,Â butÂ alsoÂ realÂ benefitsÂ toÂ pollinatorsÂ withoutÂ fearÂ ofÂ penaltyÂ forÂ attractingÂ orÂ increasingÂ theÂ amountÂ orÂ distributionÂ ofÂ theÂ listedÂ speciesÂ onÂ managedÂ lands.Â AreÂ theÂ sameÂ listedÂ orÂ atâriskÂ speciesÂ likelyÂ toÂ beÂ affectedÂ byÂ recurringÂ constructionÂ orÂ managementÂ activities?Â IfÂ listedÂ orÂ atâriskÂ speciesÂ areÂ likelyÂ toÂ beÂ continuallyÂ affectedÂ byÂ futureÂ activities,Â investingÂ earlyÂ inÂ developmentÂ ofÂ anÂ HCP,Â ifÂ thereÂ areÂ multipleÂ speciesÂ deservingÂ coverage,Â orÂ anÂ RCSÂ orÂ PCA,Â toÂ generateÂ aÂ bankÂ ofÂ creditsÂ forÂ bothÂ permanentÂ andÂ temporaryÂ impactsÂ onÂ listedÂ orÂ atâriskÂ species,Â respectively,Â mayÂ beÂ worthÂ pursuing.Â IsÂ offsiteÂ mitigationÂ anÂ option?Â IfÂ offsiteÂ mitigationÂ isÂ anÂ option,Â theÂ creationÂ ofÂ mitigationÂ andÂ conservationÂ banksÂ onÂ theirÂ ownÂ orÂ asÂ partÂ ofÂ anÂ RCSÂ orÂ HCPÂ createsÂ lastingÂ creditsÂ forÂ localÂ impactsÂ onÂ listedÂ speciesÂ thatÂ canÂ beÂ transferredÂ orÂ soldÂ toÂ otherÂ agenciesÂ inÂ time.Â AreÂ thereÂ establishedÂ recoveryÂ plansÂ forÂ listedÂ speciesÂ ofÂ interest?Â IfÂ so,Â theÂ conservationÂ actionsÂ identifiedÂ inÂ theÂ recoveryÂ planÂ provideÂ aÂ frameworkÂ fromÂ whichÂ toÂ buildÂ anÂ appropriateÂ andÂ recognizableÂ conservationÂ strategyÂ toÂ beÂ implementedÂ underÂ anÂ RCS.Â AreÂ theÂ conservationÂ needsÂ forÂ aÂ listedÂ speciesÂ poorlyÂ understood?Â IfÂ so,Â thereÂ mayÂ beÂ valueÂ inÂ exploringÂ theÂ opportunitiesÂ presentedÂ byÂ aÂ SHA,Â whichÂ allowsÂ forÂ experimentationÂ andÂ knowledgeÂ buildingÂ whileÂ providingÂ assurancesÂ thatÂ agenciesÂ willÂ notÂ beÂ penalizedÂ regardlessÂ ofÂ whetherÂ theyÂ areÂ successfulÂ inÂ benefitingÂ listedÂ speciesÂ throughÂ theirÂ actions.Â IsÂ theÂ speciesÂ endemicÂ toÂ aÂ smallÂ areaÂ orÂ doesÂ itÂ occurÂ atÂ aÂ singleÂ site?Â IfÂ so,Â anÂ HCPÂ mayÂ beÂ mostÂ appropriateÂ forÂ addressingÂ theÂ rangeÂ ofÂ conditionsÂ neededÂ toÂ ensureÂ longâtermÂ protectionÂ andÂ recoveryÂ ofÂ theÂ species,Â recognizingÂ theÂ potentialÂ forÂ impactsÂ onÂ theÂ speciesÂ associatedÂ withÂ roadÂ constructionÂ andÂ maintenanceÂ activities.Â AreÂ thereÂ establishedÂ stateâ sponsoredÂ conservationÂ plansÂ forÂ atâriskÂ speciesÂ ofÂ interest?Â Â IfÂ so,Â theÂ conservationÂ plansÂ areÂ toÂ serveÂ asÂ theÂ preferredÂ sourceÂ forÂ identifyingÂ theÂ conservationÂ strategiesÂ toÂ beÂ implementedÂ underÂ aÂ PCAÂ toÂ receiveÂ creditsÂ forÂ futureÂ impactsÂ onÂ atâriskÂ speciesÂ followingÂ federalÂ listing.Â AreÂ thereÂ federalÂ landsÂ neighboringÂ presentâdayÂ ROWsÂ orÂ futureÂ projectÂ areasÂ containingÂ recognizedÂ habitatÂ forÂ atâriskÂ speciesÂ ofÂ interest?Â IfÂ so,Â considerÂ reachingÂ outÂ toÂ neighboringÂ federalÂ agenciesÂ toÂ exploreÂ theÂ possibilityÂ ofÂ linkingÂ aÂ CCAAÂ withÂ aÂ CCAÂ toÂ establishÂ aÂ comprehensiveÂ conservationÂ planÂ forÂ atâriskÂ species,Â allowingÂ forÂ greaterÂ consistencyÂ inÂ managementÂ actions,Â andÂ thusÂ effectiveness,Â acrossÂ aÂ largerÂ regionalÂ landscapeÂ consistingÂ ofÂ bothÂ federalÂ andÂ nonâfederalÂ properties.Â
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-29 QuestionsÂ toÂ ConsiderÂ AnswersÂ toÂ HelpÂ GuideÂ DecisionsÂ IsÂ theÂ existingÂ orÂ futureÂ roadÂ networkÂ presentÂ inÂ wildfireâ proneÂ landscapes?Â IfÂ so,Â exploreÂ opportunitiesÂ toÂ earnÂ creditsÂ throughÂ anÂ HCP,Â RCS,Â orÂ PCAÂ byÂ installingÂ roadâhardeningÂ measures,Â suchÂ asÂ concreteÂ pavement,Â inÂ ROWsÂ toÂ reduceÂ ignitionÂ ratesÂ andÂ protectÂ highâvalueÂ pollinatorÂ habitatÂ harboringÂ eitherÂ listedÂ orÂ atâriskÂ speciesÂ inÂ theÂ neighboringÂ naturalÂ areasÂ borderingÂ theÂ roadÂ network.Â IsÂ theÂ existingÂ orÂ futureÂ roadÂ networkÂ inÂ landsÂ largelyÂ dominatedÂ byÂ agriculturalÂ activities?Â IfÂ so,Â considerÂ theÂ recognizedÂ valueÂ ofÂ investingÂ inÂ useÂ ofÂ nativeÂ plantsÂ inÂ ROWsÂ toÂ promoteÂ pollinatorÂ activityÂ andÂ dispersalÂ throughoutÂ theÂ largerÂ landscapeÂ whenÂ discussingÂ conservationÂ measuresÂ thatÂ mayÂ generateÂ creditsÂ underÂ anÂ RCSÂ orÂ PCA,Â orÂ areÂ recognizedÂ asÂ aÂ beneficialÂ actionÂ takenÂ underÂ aÂ CCAAÂ orÂ HCP,Â providingÂ valueÂ toÂ naturalÂ andÂ agriculturalÂ systems.Â 4.6 ProgrammaticÂ AgreementsÂ andÂ theÂ ValueÂ ofÂ ParticipatingÂ inÂ MultipleÂ StrategiesÂ An HCP, CCAA, CCA, RCS, or SHA can be developed by transportation agencies into a programmatic agreement allowing for an individual compliance strategy to be applied to a suite of projects or a program involving similar activities in a particular geographic area associated with roadside maintenance or construction. Additionally, as activities associated with expansion or maintenance of a larger road network are likely to involve multiple parties and agencies, a programmatic agreement allows for such parties to come together under a single compliance framework to achieve several objectives with positive administrative benefits for all parties. As an example, a programmatic CCAA and its associated permits authorize state, local, and tribal governments and other entities to enter into an agreement and hold the associated permit. A programmatic CCAA allows for individual property owners within a specific area or region to become enrolled and conveys the permit authorization and assurances to them through a âcertificate of inclusion.â When addressing listed species, whether through an HCP, RCS, or SHA, a programmatic approach streamlines the procedures and time involved in consultations for numerous similar activities with predictable effects on listed species and/or critical habitat. Collaboration among multiple parties allows for creation of compliance strategies that address listed and at-risk species issues at a regional level, increasing the overall effectiveness of individual conservation measures. Just as there is value in establishing collaborative agreements among multiple parties and agencies, there are also benefits to exploring the relationships among identified compliance strategies (see Figure 4-1). When moving forward with planning, transportation agencies need to consider the possibility of implementing multiple strategies in a phased approach to meeting long-term programmatic needs for ESA compliance. The value of phasing or engaging in multiple strategies becomes clear when agencies are looking at longer-term time horizons associated with project work and recognize the suite of activities that may need to be permitted will take place across an expansive geography.
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-30 Additionally, depending on the geographic and temporal scope of planned activities, agencies need to consider the value of participating in multiple programs concurrently if actions undertaken for the benefit of listed and at-risk species under otherwise separate programs are mutually exclusive. In coupling strategies that address the immediate compliance needs of listed species together with implementation of proactive conservation efforts designed to aid species before they become listed, DOTs position themselves to maximize the full value of available strategies and increase opportunities to discover ways to successfully streamline regulatory processes and incorporate simpler, more cost- effective conservation measures in roadside design and management. Figure 4-1. Relationships among voluntary ESA compliance strategies and opportunities for a phased approach.
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-31 Figure 4-1 (continued) 1 RecognizedÂ conservationÂ actionsÂ benefitingÂ listedÂ speciesÂ underÂ aÂ SHAÂ includeÂ developmentÂ andÂ testingÂ ofÂ newÂ habitatÂ managementÂ techniques.Â UnderÂ thisÂ experimentalÂ componentÂ ofÂ theÂ agreement,Â newÂ managementÂ activitiesÂ canÂ beÂ developedÂ andÂ informÂ conservationÂ measuresÂ benefitingÂ listedÂ speciesÂ implementedÂ underÂ anÂ RCS.Â ManagementÂ actionsÂ undertakenÂ throughÂ anÂ SHAÂ canÂ beÂ transferredÂ toÂ anÂ RCSÂ followingÂ terminationÂ ofÂ theÂ SHA.Â 2 ConservationÂ measuresÂ benefitingÂ listedÂ speciesÂ implementedÂ underÂ anÂ approvedÂ RCSÂ canÂ beÂ expandedÂ inÂ scopeÂ toÂ addressÂ pollinatorÂ speciesÂ proposedÂ forÂ listingÂ orÂ candidatesÂ forÂ listingÂ onÂ nonâfederalÂ landÂ throughÂ developmentÂ ofÂ aÂ CCAA.Â ImplementationÂ ofÂ managementÂ activitiesÂ identifiedÂ underÂ aÂ CCAAÂ thatÂ complementsÂ anÂ existingÂ RCSÂ allowsÂ forÂ provisioningÂ ofÂ moreÂ comprehensiveÂ regulatoryÂ coverageÂ fromÂ aÂ multispeciesÂ context.Â 6 HCPsÂ areÂ theÂ mostÂ comprehensiveÂ complianceÂ strategyÂ availableÂ toÂ nonâfederalÂ partiesÂ toÂ conserveÂ theÂ ecosystemsÂ andÂ naturalÂ processesÂ uponÂ whichÂ listedÂ speciesÂ depend,Â ultimatelyÂ contributingÂ toÂ theirÂ recovery.Â HCPsÂ canÂ applyÂ toÂ bothÂ listedÂ andÂ nonâlistedÂ species,Â includingÂ thoseÂ thatÂ areÂ candidatesÂ orÂ haveÂ beenÂ proposedÂ forÂ listing.Â ConservationÂ measuresÂ implementedÂ underÂ otherÂ identifiedÂ complianceÂ strategiesÂ canÂ beÂ transferredÂ orÂ rolledâupÂ toÂ anÂ HCP.Â 3 PrimarilyÂ developedÂ toÂ coverÂ activitiesÂ onÂ federalÂ lands,Â aÂ CCAÂ canÂ beÂ writtenÂ toÂ performÂ theÂ functionÂ ofÂ anÂ overarchingÂ conservationÂ planÂ forÂ aÂ singleÂ orÂ multipleÂ species.Â AÂ conservationÂ planÂ canÂ serveÂ toÂ linkÂ aÂ CCAÂ forÂ federalÂ propertyÂ togetherÂ withÂ preventativeÂ measuresÂ takenÂ underÂ aÂ CCAAÂ implementedÂ onÂ adjoiningÂ nonâ federalÂ landsÂ allowingÂ enrolleesÂ toÂ seamlesslyÂ implementÂ conservationÂ measuresÂ toÂ addressÂ theÂ needsÂ ofÂ atâriskÂ species.Â 4 IfÂ conservationÂ measuresÂ implementedÂ underÂ aÂ CCAAÂ areÂ consistentÂ withÂ aÂ conservationÂ strategyÂ forÂ aÂ speciesÂ establishedÂ byÂ aÂ stateÂ resourceÂ agency,Â theÂ CCAAÂ canÂ beÂ terminatedÂ andÂ managementÂ actionsÂ transferredÂ toÂ aÂ PCA.Â TransferenceÂ wouldÂ leadÂ toÂ theÂ generationÂ ofÂ creditsÂ forÂ useÂ asÂ mitigationÂ orÂ asÂ aÂ compensatoryÂ measureÂ forÂ theÂ detrimentalÂ impactÂ ofÂ anÂ actionÂ undertakenÂ withinÂ aÂ specifiedÂ "serviceÂ area"Â afterÂ theÂ speciesÂ isÂ listedÂ asÂ threatenedÂ orÂ endangered.Â 5 ConservationÂ measuresÂ benefitingÂ listedÂ speciesÂ implementedÂ underÂ anÂ approvedÂ RCSÂ mayÂ beÂ expandedÂ inÂ scopeÂ toÂ addressÂ conservationÂ actionsÂ identifiedÂ byÂ aÂ stateÂ resourceÂ agencyÂ forÂ atâriskÂ speciesÂ throughÂ developmentÂ ofÂ aÂ PCA.Â WhenÂ workingÂ inÂ concert,Â anÂ RCSÂ andÂ PCAÂ canÂ leadÂ toÂ theÂ generationÂ ofÂ creditsÂ thatÂ canÂ beÂ ''banked"Â andÂ sharedÂ amongstÂ agenciesÂ toÂ addressÂ futureÂ impactsÂ toÂ multipleÂ species.Â
ChapterÂ 4.Â NativeÂ PollinatorsÂ andÂ theÂ FederalÂ EndangeredÂ SpeciesÂ Act:Â ComplianceÂ StrategiesÂ forÂ StateÂ DepartmentsÂ ofÂ TransportationÂ 4-32 4.7 SummaryÂ State DOTs can contribute to the recovery of imperiled pollinator species and potentially help to avert listings by considering pollinators in the planning process. Undertaking proactive voluntary conservation measures can help transportation agencies secure reasonable assurances regarding their future regulatory responsibilities under the ESA through a variety of mechanisms. HCPs and associated incidental take permits have continually proven themselves to be a versatile tool for reconciling development and conservation objectives in a wide variety of contexts. Similarly, SHAs, CCAAs, CCAs, RCS, and PCAs offer transportation agencies useful strategies to be collaborative and innovative in their approach to ESA compliance. The flexibility and ingenuity tied to thoughtful, advanced planning efforts are key to developing effective compliance strategies and resolving complex and controversial issues that may arise as a transportation project or program moves from planning to implementation. Investing in time up front to identify opportunities can allow transportation agencies to take a comprehensive approach to planning and implementing conservation measures across a larger service area or road network. With an opportunity to take a landscape-scale approach and think broadly about future impacts likely to occur across space and time, planners and designers can consider adopting compliance strategies that are programmatic in nature and take advantage of multi-agency partnerships. In particular, transportation agencies can seek out opportunities to form multi-agency partnerships across regions where similar construction and management activities have the potential to affect, but equally improve, the long-term conservation status of imperiled pollinators. For a number of infrastructure agencies, such partnerships have proven to ultimately lead to greater efficiencies in the design and build process (see Chapter 5) and long-term maintenance (see Chapter 6), saving time and resources. Furthermore, implemented measures have resulted in higher-profile conservation actions for the agencies and often greater public support and recognition. 4.8 AdditionalÂ ResourcesÂ â¢ NCHRP Legal Research Digest 75: Legal Requirements for State Departments of Transportation Agency Participation in Conservation Plans: https://www.nap.edu/catalog/24901/legal-requirements-for-state-departments-of- transportation-agency-participation-in-conservation-plans. â¢ USFWSâs Pollinators Library: https://www.fws.gov/library/collections/pollinators. â¢ USFWSâs Endangered Species Program: https://www.fws.gov/program/endangered- species.