Presentation Transcript

1. Natural Resource Mitigation

   ODOT Office of Environmental ServicesEcological Section
2. Mitigation Background Mitigation is attempting to offset negative impacts by replacing functions and values/services (e.g. recreate an ecosystem) Mitigation occurs after avoidance and minimization options are exhausted Mitigation is a result of the negotiated waterway permits or other required approvals Regulatory agencies don’t always agree on what is “good” mitigation Includes the preservation, restoration, and creation of natural areas and systems ODOT routinely constructs “natural” wetlands and streams as part of transportation projects
3. What types of natural resource mitigation is ODOT involved with? Stream Mitigation Wetland Mitigation Endangered Species Mitigation (AKA Conservation Measures) Stormwater Mitigation (Office of Hydraulics)
4. Regarding mitigation, what rules are we required to follow? Federal Clean Water Act Section 404/401: Fill in streams and wetlands (USACE, OEPA) Section 402 NPDES: stormwater, discharges (OEPA) Federal River and Harbors Act Bridges and actions over specific (large) rivers and harbors (USCG & USACE) Ohio Isolated Wetland Rule Hydrologically isolated wetlands not regulated by the federal government Federal Endangered Species Act Section 7 Programmatic Biological Opinion on the Indiana bat Other laws- Section 106, 4(f), 6(f), etc.
5. Overview Approximately 5% of ODOT’s projects have a mitigation component, some of which have multiple mitigation sites for a particular project Over half of Ohio’s 88 Counties have some type of mitigation project that occurs within their boundaries Over 5,000 acres of mitigation land are in ODOT’s inventory under protection (including pending acquisitions)
6. Overview Overview ODOT owns over 100 acres of wetland bank credits at approximately 8 different wetland banks Multiple ODOT mitigation sites have “pooled credits” for future ODOT use Most of ODOT’s mitigation sites are protected in perpetuity via a legal protection instrument as required by regulations
7. Overview Currently, ODOT has 28 mitigation sites that are within the 5 year monitoring period (some are monitored for much longer) We perform annual monitoring (for at least 5 years) to ensure compliance with performance standards outlined in permits or other approvals ODOT works with third party non profit organizations (ODNR, land trusts, etc.) as easement holders or long term property owners.
8. Overview ODOT’s Mitigation Inventory Website is the clearinghouse of information related to the mitigation program http://www.dot.state.oh.us/Divisions/Planning/Environment/Ecological_Resources_Permits/MitigationInventory/Pages/default.aspx
9. What are the various ways to conduct natural resource mitigation? Creation Manipulation of the landscape in attempt to develop a resources where it did not previously exist Restoration Attempting to restore historic natural resource functions to a landscape Enhancement Improvements made to existing areas Preservation Perpetual protection of high quality natural resources either by fee simple/easement acquisition with legal protection instrument
10. Stream restoration concepts natural channel design Natural Channel Design It is obvious stream design as a science is in its infancy Stream design concepts/measurements Nature Designed
11. Stream restoration - Remediating historical impacts as mitigation
12. Wetland Restoration/Creation HOC/ATH-33 PID 14040 Wetland Mitigation Site
13. Preservation of high quality natural resources Focus on high quality stream, wetland, or forest habitat For streams – class 2/3, WWH, EHW, etc. For wetlands – high category 2 and all category 3 For endangered species (Indiana bat) – suitable forested habitat known to harbor Indiana bats or with records nearby
14. What are the ground rules for mitigation (type, location, ratios, approval process)? Stream Mitigation USACE – Final Compensatory Mitigation Rule (2008) and Mitigation Guidelines Checklist OEPA – No stream mitigation rules currently available. Case by case Wetland Mitigation USACE – Final Compensatory Mitigation Rule (2008) and Mitigation Guidelines Checklist OEPA – Wetland Water Quality Standards Endangered Species Mitigation/Conservation No rules currently exist. Case by case Species dependent based upon recovery plans
15. What is ODOT’s process for mitigation? The process can take several years to complete and can be very uncertain, time consuming and cumbersome 8 major environmental task categories with many smaller tasks contained within the major categories Impact and need assessment Mitigation opportunities inventory Potential mitigation assessment Mitigation plan and design Permitting and/or other approvals Construction Monitoring, maintenance, and/or adaptive management Long term protection and management Real Estate Process (13 steps) overlap with many of the environmental task categories and constitute a significant portion of the process, time, and costs
16. Mitigation Process
17. Real estate process for mitigation acquisition
18. Locating mitigation opportunities This can be extremely difficult if not impossible in some parts of the state. Director of ODOT does not have eminent domain power to appropriate land for stream or endangered species mitigation, thus we must rely on willing sellers. This process can take 2-4 years to complete and is not schedule friendly.
19. Locating mitigation opportunities Mitigation Opportunities Can be found through existing ODOT pooled mitigation sites or banks Can have a more formal Mitigation Opportunities Inventory and Report produced Mitigation Opportunities Inventory/Report A specific opportunities search targeted for the requirements of specific project or a larger area (e.g. watershed based, management unit based, etc.) This acts as toolbox from which ODOT can shortlist and act on mitigation options
20. Mitigation Opportunities Inventory/Report Provides a comprehensive search for: On site opportunities (within one mile of the project) Typically identified in earlier project planning, but could be Excess Parcels (E Parcels) Off site opportunities Banks or ODOT pooled mitigation areas Properties currently for sale by owner – identified through a real estate search Conservation organization projects (e.g. land trusts, park districts, watershed groups, etc.) This report helps guide ODOT into a mitigation action plan from which to proceed on
21. Mitigation location For stream/wetland mitigation If on site mitigation is not possible, the mitigation should be located within the 8 digit HUC and within the USACE district boundaries Exceptions can be made with agency preapproval For endangered species conservation For the Indiana bat, conservation is targeted for areas with known female/juvenile capture records within the respective management units per the most current programmatic agreement
22. Mitigation plans For ODOT, firms must be prequalified in stream/wetland mitigation, which requires the firm be prequalified for ecological surveys For streams/wetlands, can separated into a conceptual and final plan Section 707 of Waterway Permits Manual covers mitigation plan requirements USACE Mitigation Rule and Guidelines Checklist Cannot proceed with impacts until USACE approves Final Mitigation Plan
23. Mitigation Plans Major components of a mitigation plan Overall mitigation goals and objectives Baseline information of proposed impact site and mitigation site Mitigation site selection and justification Mitigation work plan (this may be more involved if creation/restoration is part of your mitigation plan) Performance standards Site protection and maintenance Monitoring plan Adaptive management plan The level of detail depends on the amount and type of mitigation that is being proposed Performance standards are critical part of the whole process Negotiation of achievable performance standards is key to being able to meet the performance standards and eventually receive a mitigation release from the agencies
24. Mitigation plans For endangered species mitigation, the USFWS requires a conservation banking prospectus ODOT is working with USFWS to develop a more streamlined process The information required is similar to a stream/wetland final mitigation plan, however, there typically will just be a preservation component As more species get listed, this process will likely evolve
25. Mitigation construction (or demolition) considerations Mitigation is highly specialized work Oversight by OES or prequalified consultants are critical to success ODOT has found it better to create separate projects (from the overall transportation project construction) for mitigation construction in order to get better products A mitigation construction schedule is critical to success especially with planting considerations Deviations from the plan are common, but shall not proceed without first consulting with OES Some projects may have permit deadlines for completing the construction of the mitigation project
26. Mitigation site monitoring Typically a 5 year monitoring period (with some exceptions) that begins the first full year following completion of construction The monitoring depends on what is in the final waterway permits (or USFWS approval letter) Typical monitoring items include: Hydrology, soils, vegetation (VIBI), water quality, wildlife, photographs The monitoring must provide sufficient detail to analyze whether or not the site is meeting performance standards
27. Mitigation site monitoring An annual permit compliance report (PCR) is produced that is coordinated with the agencies Typically a 3rd and 5th year agency field review is required Agencies may make comments after field reviews or after review of annual PCR. These are typically recommendations for adaptive management or things to improve upon in order to meet performance standards/ permit conditions ODOT may conduct adaptive management via the Environmental Mitigation Task Order The goal is to obtain mitigation release letters at the end of the five years of monitoring
28. Perpetual protection of mitigation sites Sites must be protected in perpetuity via legal protection instrument Could be environmental resource easement (ERE) or restrictive covenant (RC) ODOT maintains some sites fee simple for long term management Preference is towards transferring ownership of sites to 3rdparties for long term ownership/stewardship (ODNR, land trusts, etc.)
29. Perpetual protection of mitigation sites ODOT is bound by waterway permit, USFWS, and/or NEPA environmental commitments to ensure that mitigation sites protected in perpetuity are in compliance with the restrictions in the legal protection instrument This is done by both ODOT and/or 3rd parties depending on the site Any issues with a particular site must be dealt with (tree cutting, encroachments, dumping, etc.) We are in the process of developing up with a more defined process for reviewing our mitigation sites with perpetual protection commitments
30. Stream mitigation challenges and issues MITIGATION IS NOT EASY! The list below is for stream mitigation, but you could create similar lists for wetland and/or endangered species mitigation Head cutting Erosion Grouted channel in a “natural” stream design Planting failure Poor soils Bank instability Riffles that = dams Wetland vegetation in the channel Rock size and type Big regulatory goals for relatively short relocations Stream Not constructed to plan Mitigated bankfull width or floodplain area squeezed back into small pipes Stringent, unclear, or changing expectations/regulations Difficult to protect in perpetuity because of underlying highway easement Intrusion on mitigation site by maintenance crews Regulations in practice, in some scenarios, make neither sound engineering or ecological sense (ex. Weirs in a grass roadside ditch) and are continually changing with no consensus Waterway permit conditions can be unrealistic resulting in projects which may have been constructed per plan but are not meeting permit conditions Lack of understanding of mitigation construction techniques and lack of standardized stream construction techniques. The “science” of stream mitigation is in its infancy
31. Evaluating our mitigation For the most part we are doing pretty well…… Exceeding performance standards on many projects National award for wetland creation on PER-93 Constructing excess mitigation for use on future projects (pooled mitigation) Learning from past mistakes (sometimes) Meeting the performance standards and permit conditions on a majority of the projects up to this point, however, things will get tougher in the future Obtaining mitigation releases on nearly every mitigation project, some requiring some adaptive management All information is pertaining to each mitigation site (permits, legal protection instruments, permit compliance reports, etc.) ODOT mitigation inventory website http://www.dot.state.oh.us/Divisions/Planning/Environment/Ecological_Resources_Permits/MitigationInventory/Pages/default.aspx
32. Environmental commitments and how they are accomplished… Examples of commitments may include: Instream work restrictions Species surveys and/or relocations Cutting dates or avoiding terrestrial areas at certain times of year (or other avoidance/minimization) Adhering to fill limits allowed by waterway permits (permanent and temporary fills) Mitigation/Conservation Measures Monitoring of adjacent areas post-impact
33. Environmental commitments and how they are accomplished… Commitments be implemented by: Plan notes Design changes resulting in changes to plans Special Provisions Utilizing OES staff, consultants, or contractors (depending on activity) to conduct commitment work prior to construction Conducting mitigation/conservation measures in some fashion
34. The future?..Inlieu fee mitigation – Ohio program development The Nature Conservancy has agreed to sponsor the ILF program in Ohio (for stream and wetland mitigation only) A prospectus has been submitted to the IRT and has been public noticed by the USACE This program will likely be similar to the Virginia ILF model Will be an option for Federal and State permits, once approved by the IRT Targeted to be available for late 2013 or early 2014 Viability will depend on what the prices are
35. Advantages of in lieu fee programs Easier for applicants to fulfill mitigation requirements Reduce Agency regulatory review time and compliance monitoring Fulfills sponsor’s interest in resource restoration Allows larger, more effective mitigation vs. smaller, fragmented projects
36. Pooled stream mitigation and bat conservation area- Sunday Creek Coal Company (SCCC2) Approximately 3,330 acres in Hocking County OH Acquired by ODOT in December, 2012 Adjacent to Wayne National Forest Land, ODNR DOW Property, and private property Estimated to be over 90% forested Will eventually be transferred to ODNR for long term ownership and management as part of the Wallace O Dowd Wildlife Area
37. Pooled stream mitigation and bat conservation area- Sunday Creek Coal Company (SCCC2) ODOT intends to utilize the site for: Stream mitigation area Stream preservation and identification of future restoration opportunities HOC/ATH-33 replacement mitigation Pooled stream mitigation for future projects Approximately 119,000 linear feet of high quality streams available for credit Existing wetland are also being identified Bat conservation area – federally endangered bat species Pooled Conservation Area for Indiana bat habitat impacts for Programmatic Biological Opinion Property appears within the NiSource and TNC high suitability area Indiana bat calls recorded with acoustic monitoring devices at 95% of the monitor locations (111 total monitor locations throughout the property). 11 total bat species recorded on the property Will provide 2,580 acres of bat conservation Details still being finalized with USFWS, OEPA, USACE, and ODNR

38. Questions?

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