An innovative Memorandum of Agreement (MOA) created by Colorado DOT (CDOT), the Federal Highway Administration (FHWA), and U.S. Fish and Wildlife Service (USFWS) will provide CDOT with a new streamlined option for fulfilling its mitigation responsibilities under the Endangered Species Act as they relate to the Canada lynx (lynx).  In essence, for projects that are determined to have impacts on lynx, CDOT now can propose that it pay an in-lieu fee (ILF) into a Lynx Mitigation Fund rather than carry out mitigation measures onsite. The MOA was signed on July 7, 2015.

“We have known for some time that our actions were impacting lynx by increasing the barrier effect of highways,” explains Jeff Peterson, Wildlife Program Manager for CDOT’s Environmental Programs Branch. “However, because our right-of-way very seldom contains usable habitat, mitigation has been challenging.  Choices such as providing safe passage over or under the highway at the site often can end up being more costly than the project itself, and possibly less-effective.”

Under the terms of the MOA, Peterson says, “we can propose using the ILF as our preferred mitigation choice in our Biological Assessment (BA).  USFWS then either agrees or disagrees with our choice in its Biological Opinion (BO). Furthermore, we can propose it under both Section 7 and Section 10 of the Act.”

From Peterson’s perspective, the new option is a win-win. If the ILF gets a green light for a particular project, CDOT’s ESA responsibilities are fulfilled and it can get on with its project.  And from a species preservation perspective, adding an in-lieu fee to the fund opens up the possibility of using the fund for more strategic and comprehensive mitigation elsewhere in the state.  Although CDOT has not yet had the opportunity to put the MOA to work, Peterson says, his agency is planning a number of projects that are strong candidates for the ILF option.  “And when that time comes — and I’m virtually certain it will — we’re ready,” he says.

The lynx is listed as threatened in Colorado. Currently, there are believed to be approximately 200-300 lynx statewide. Peterson says it has been estimated that approximately 670 miles of Colorado highway are located in lynx habitat, and an additional 210 miles or so of lynx movement corridors exist between patches of suitable habitat.

MOA Provisions

ILF contributions to the mitigation fund are based on project “award” costs with the rationale that they represent the most accurate construction cost estimates.  The amount contributed is tied to the type and severity of the impact(s) the project would be expected to have on the lynx.  It is based upon the average cost of mitigation and compliance with the ESA compared to total construction costs (by percent) for past projects that included mitigation for impacts to lynx. Maximum contribution for an individual project is 5 percent.

The fund can be used for a new stand-alone mitigation project or, more likely, to enhance a current project.  For example, if a highway project is in lynx habitat, and mitigation normally would call for a concrete box culvert (CBC) to be installed under a portion of the highway to channel flowing water, the ILF could be used to cover additional costs of building a bridge, which would open up passage for lynx under the bridge.

Under the terms of the MOA, funds can be leveraged, and partnering is encouraged. For instance, the Forest Service may be carrying out a project to consolidate land parcels that includes trading some of its land for private parcels throughout the forest.  If some of those parcels are in an area known to be frequented by lynx, CDOT could partner with the Forest Service so the land on either side of a proposed lynx crossing would be protected from development.

The MOA calls for two management teams to be created: an Advisory Committee and a Fund Management Team.  The teams are in charge of managing the ILF mitigation process for individual projects. Besides participation on the teams, each of the three lead agencies has additional responsibilities spelled out in the MOA.  For example, CDOT is in charge of setting up the two management teams; FHWA must participate in the development of ESA compliance documents and consult with USFWS on any project that may affect lynx; and USFWS is responsible for providing the most up-to-date information and science available when determining the most appropriate mitigation for lynx.

Benefits, Challenges and Transferability

Peterson predicts that numerous benefits will accrue from using the MOA.  First, there are the direct benefits of enabling projects to move forward efficiently and mitigation efforts to be broader and more strategic for the benefit of the lynx.  In addition, he anticipates that it will also foster increased trust between CDOT/FHWA and the resource agencies.  Other potential benefits may include a more positive public perception of CDOT’s wildlife department and demonstrated success in interagency collaboration.

Challenges in putting the MOA to work remain to be seen.  In the meantime, challenges definitely were encountered in creating and signing off on the MOA.  The first was securing active and substantive support from senior-level management on the concept itself.  Beyond that, obtaining agreement among Regional Managers on the terms of the sliding scale initially was a hurdle. Yet another obstacle encountered was how to account in budgets for moving money from one project into another one that isn’t in the same CDOT region, or perhaps even proposed yet.

“The good news is that the basic procedure outlined in the MOA can serve as a template for creating a similar document in another state,” he says. “It would be a matter of plugging in state-specific details such as funding sources, maintenance responsibilities, and reporting requirements.  To my knowledge, no one else is using anything similar.”

According to Peterson, perhaps the most important thing to do at the very beginning is to get all the parties together for several informal discussions during which everyone is heard but nothing is yet put down on paper.  The time is well worth it, he says.  Once everyone is invested in the success of the endeavor, the chances of developing the MOA in a spirit of collaboration are much greater.

“But everyone should be prepared for a fair amount of wordsmithing before the document is finalized.  No matter how well everyone gets along, each agency needs to feel comfortable that its mission is protected.  I’d recommend access to a lawyer to help with that aspect; for our MOA, we used the USFWS legal advisor and it worked well.”

Peterson concludes, “At the end of the day, it’s a case of rolling up your sleeves and putting the effort in now to reap benefits well into the future.”

For more information, contact Jeff Peterson, Wildlife Program Manager, Environmental Programs Branch, Colorado DOT, at [email protected]  or visit the CDOT website at www.CODOT.gov/programs/environmental/wildlife.