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From page 37... ... 4-1 Chapter 4 Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4.1 Introduction 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) Read the entire page →
From page 38... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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. Read the entire page →
From page 39... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-3 4.2 Introduction to the ESA 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. Read the entire page →
From page 40... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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. Read the entire page →
From page 41... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-5 Table 4-1. Permit, process, length of time to prepare, and assurances associated with voluntary ESA compliance strategies. Read the entire page →
From page 42... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-6 ESA Compliance Strategy Permit Process Length of Time to Prepare* Formal Assurances Agreement (PCA) Read the entire page →
From page 43... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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) Read the entire page →
From page 44... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-8 Step 1 – 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 § 402.02) Read the entire page →
From page 45... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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 § 402.13) Read the entire page →
From page 46... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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) Read the entire page →
From page 47... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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) Read the entire page →
From page 48... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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. Read the entire page →
From page 49... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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) Read the entire page →
From page 50... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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 "excess land" for conservation to offset permanent impacts on listed species, or restoration of degraded lands on non-federal lands (see Fender's Blue Butterfly HCP as an example of the use of offsite mitigation to address local impacts tied to ROWs) Read the entire page →
From page 51... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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:  an assessment of impacts likely to result from the proposed taking of the species for which permit coverage is requested,  measures that the permit applicant will undertake to monitor, minimize, and mitigate for such impacts,  funding available to implement such measures,  procedures to deal with unforeseen or extraordinary circumstances,  alternative actions considered that would not result in take and the reasons why the applicant did not adopt such alternatives, and  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 applicant's document, and development of the HCP is the responsibility of the applicant and not the Services. Read the entire page →
From page 52... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-16 and development of the plan (50 CFR § 17.3) Read the entire page →
From page 53... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-17 Point of Comparison Section 7 Section 10 or adversely modify critical habitat. Process Informal or formal consultation with USFWS is initiated by the federal action agency and typically follows a preparation of a biological evaluation or biological assessment by the applicant for the action agency. The HCP is prepared by the applicant and follows the applicant's timeline during the pre‐application process and development of the HCP. Timeline Undefined for informal consultation, although typically 30–90 days, recognizing a 60‐day timeline exists for concurrence following receipt of an adequate written request; defined timeline once formal consultation is initiated (up to 135 days) . Undefined. Typically, it takes 1 to 3 years depending on the scope of the plan. Permit and Assurances Incidental take statement does not include regulatory assurances; terms and conditions determined by USFWS, in consultation with the action agency and applicant; reinitiation of consultation is always possible. Permit conditions negotiated between the Services and the permit applicant. No Surprises assurances provided so USFWS cannot require additional resources (including additional commitment of land, water, or financial resources or additional restrictions beyond the level otherwise agreed on in the HCP) Read the entire page →
From page 54... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-18 4.4 Other Voluntary ESA Compliance Strategies In addition to HCPs, other voluntary strategies exist to address ESA compliance (see Table 4-1 for a summary) Read the entire page →
From page 55... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-19 Willamette Valley Native Prairie Habitat Programmatic Safe Harbor Agreement for the Fender's Blue Butterfly Fender's 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 Fender's 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 Fender's blue butterfly, the federally listed Kincaid's lupine, and other native species occurring in open prairie habitat within Willamette Valley in Benton, Lane, Linn, Marion, Polk, and Yamhill Counties in Oregon. Read the entire page →
From page 56... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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-ofsurvival permit, issued under Section 10(a) Read the entire page →
From page 57... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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) Read the entire page →
From page 58... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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-monarchbutterfly 4.4.4 Recovery Crediting System A Recovery Crediting System (RCS) Read the entire page →
From page 59... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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. Read the entire page →
From page 60... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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. Read the entire page →
From page 61... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-25 support birds like the western meadowlark (Sturnella neglecta) and the burrowing owl (Athene cunicularia) Read the entire page →
From page 62... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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. Read the entire page →
From page 63... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-27 ESA Compliance Strategy Percentage of Respondents Familiar with the Strategy Percentage of Respondents Who Have Applied the Strategy to Their Work Prelisting Conservation Agreements 54% (21 of 39) Read the entire page →
From page 64... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-28 Questions to Consider Answers to Help Guide Decisions Are some of the suggested changes to maintenance activities to benefit listed pollinators also viewed as potential cost‐saving measures? If so, creation of SHA allows for transportation agencies to invest in maintenance activities that may result in cost savings, such as shifting the timing and frequency of mowing, but also real benefits to pollinators without fear of penalty for attracting or increasing the amount or distribution of the listed species on managed lands. Are the same listed or at‐risk species likely to be affected by recurring construction or management activities? Read the entire page →
From page 65... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-29 Questions to Consider Answers to Help Guide Decisions Is the existing or future road network present in wildfire‐ prone landscapes? If so, explore opportunities to earn credits through an HCP, RCS, or PCA by installing road‐hardening measures, such as concrete pavement, in ROWs to reduce ignition rates and protect high‐value pollinator habitat harboring either listed or at‐risk species in the neighboring natural areas bordering the road network. Is the existing or future road network in lands largely dominated by agricultural activities? Read the entire page →
From page 66... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 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 costeffective conservation measures in roadside design and management. Read the entire page →
From page 67... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-31 Figure 4-1 (continued) 1 Recognized conservation actions benefiting listed species under a SHA include development and testing of new habitat management techniques. Under this experimental component of the agreement, new management activities can be developed and inform conservation measures benefiting listed species implemented under an RCS. Management actions undertaken through an SHA can be transferred to an RCS following termination of the SHA. 2 Conservation measures benefiting listed species implemented under an approved RCS can be expanded in scope to address pollinator species proposed for listing or candidates for listing on non‐federal land through development of a CCAA. Implementation of management activities identified under a CCAA that complements an existing RCS allows for provisioning of more comprehensive regulatory coverage from a multispecies context. 6 HCPs are the most comprehensive compliance strategy available to non‐federal parties to conserve the ecosystems and natural processes upon which listed species depend, ultimately contributing to their recovery. HCPs can apply to both listed and non‐listed species, including those that are candidates or have been proposed for listing. Conservation measures implemented under other identified compliance strategies can be transferred or rolled‐up to an HCP. 3 Primarily developed to cover activities on federal lands, a CCA can be written to perform the function of an overarching conservation plan for a single or multiple species. A conservation plan can serve to link a CCA for federal property together with preventative measures taken under a CCAA implemented on adjoining non‐ federal lands allowing enrollees to seamlessly implement conservation measures to address the needs of at‐risk species. 4 If conservation measures implemented under a CCAA are consistent with a conservation strategy for a species established by a state resource agency, the CCAA can be terminated and management actions transferred to a PCA. Transference would lead to the generation of credits for use as mitigation or as a compensatory measure for the detrimental impact of an action undertaken within a specified "service area" after the species is listed as threatened or endangered. 5 Conservation measures benefiting listed species implemented under an approved RCS may be expanded in scope to address conservation actions identified by a state resource agency for at‐risk species through development of a PCA. When working in concert, an RCS and PCA can lead to the generation of credits that can be ''banked" and shared amongst agencies to address future impacts to multiple species. Read the entire page →
From page 68... ... Chapter 4. Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4-32 4.7 Summary 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. Read the entire page →

From page 37...

... 4-1 Chapter 4 Native Pollinators and the Federal Endangered Species Act: Compliance Strategies for State Departments of Transportation 4.1 Introduction 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)