The Maine Department of Transportation (MaineDOT) has adopted a programmatic approach to ensure vital protections for the endangered Atlantic salmon, while cutting project-approval times for 60 percent of projects that are likely to affect the species.

Background

The Maine Atlantic Salmon Programmatic Consultation is a combined effort of MaineDOT, the Federal Highway Administration (FHWA), the U.S. Fish and Wildlife Service (USFWS), the U.S. Army Corps of Engineers (USACE), and the Maine Turnpike Authority (MTA). With the help of a $250,000 FHWA grant, the agencies collaborated to expedite the Endangered Species Act (ESA) Section 7 consultation process for projects that impact the Atlantic salmon through development of a programmatic biological opinion (PBO) and a related in-lieu fee mitigation program.

The PBO was issued by the USFWS in January 2017 in response to a programmatic biological assessment (PBA) prepared by MaineDOT.

The PBO applies to a range of transportation projects likely to result in unavoidable adverse effects to Atlantic salmon or its critical habitat.  A project qualifies for processing under the PBO depending on its location, the quality of habitat, design parameters, and construction methods.

Under the programmatic, MaineDOT agrees to design and carry out a mutually-agreed-upon standard set of procedures, including avoidance and minimization measures and mitigation practices. Given that the actions are standardized, USFWS review time is greatly reduced, also reducing project delivery time and cost by significantly improving predictability for both MaineDOT and USFWS.

Once the project qualifies for programmatic coverage, informal consultations are completed within 14 days and formal consultations are completed within 30 days.

Specific benefits include the following:

• Approximately 60 percent of MaineDOT projects requiring Section 7 consultation for Atlantic salmon will qualify for expedited processing under the PBO;
• For those projects that qualify, individual BAs (typically 50 to 100 pages) are replaced by a standard two-page checklist form that reflects the protocols and performance standards of the PBO;
• The timeframe for informal USFWS consultation and concurrence is reduced from about 8 months to 1 month; and
• Parties can focus on projects outside the PBO that may have greater impacts on the species.

Addressing a Backlog of BAs

“Back in 2010, we had an annual backlog of about 40 informal and formal Biological Assessments (BAs) for salmon-related projects requiring USFWS review and fewer than 7 were being processed due to extremely heavy workloads and highly detailed information requests,” said Judy Gates, director of MaineDOT’s Environmental Office.

Gates said less than 20 percent of annual consultations for the Atlantic salmon were reaching completion in time to deliver projects during a very constrained construction window.

“USFWS was issuing their decisions months past its target dates and, as a result, we were going way beyond our project delivery deadlines. We all realized we had to do something,” Gates said.

Specifics of the Programmatic Biological Opinion

To help address this backlog, the agencies developed a programmatic consultation, committing to specific design standards that seek to reconnect waters for endangered salmon. The PBO applies to three priority geographic areas within the state designated as Salmon Habitat Recovery Units.

In implementing the PBO, MaineDOT, MTA, FHWA, and the USACE maintain regular communication with USFWS and NMFS on each project’s potential for programmatic coverage. The PBO covers activities such as:

• culvert and bridge replacement;
• bridge maintenance;
• geotechnical drilling; and
• scour countermeasures and culvert end resets.

The PBO also lists actions that do not fall under programmatic coverage and still require individual consultation, such as solid-fill causeways replaced in potential spawning habitat.

In-Lieu Fee Program Provides Flexibility

To further these efforts, MaineDOT also is collaborating with the USACE to develop an in-lieu fee (ILF) mitigation program for Atlantic salmon.  The PBO serves as the primary avenue by which mitigation fees can be directed to Atlantic salmon recovery efforts under the purview of USFWS and NMFS.

The Atlantic salmon ILF will enable public and private applicants for federal environmental permits  to direct mitigation dollars to the Atlantic salmon ILF fund instead of performing project-specific mitigation. Funds from the Atlantic salmon ILF will be distributed as determined by an interagency review team comprised of state and federal agencies with jurisdiction over Atlantic salmon management and recovery.

The program is intended to operate as an ecosystem crediting system. Environmental benefits such as preserving a habitat recovery unit will be valued in relation to other environmental benefits and assigned a relative number of credits that, in turn, have an associated dollar equivalent. Permit applicants will pay a specific number of mitigation dollars into the system based upon direct and indirect effects attributed to their project.

An environmental group has been contracted to develop the ILF program’s framework and propose a defensible benefit-cost methodology. The program is based on Maine’s existing wetland in-lieu fee program, the “Maine Natural Resource Conservation Program,” which has successfully funded both state and federally-required mitigation for the last decade.  The new ILF is expected to be finalized in the summer of 2017.

Implementation and Cost Considerations

Simply not having to draft a BA for 45 projects each year results in a cost savings of over $150,000. More significantly, this frees technical staff to spend those hours in the field gathering data needed to improve habitat connectivity.

In addition to MaineDOT direct costs, USFWS will benefit as its transportation liaisons focus on more complex projects. MaineDOT has opted to fund two liaisons to USFWS to increase capacity, create an institutional knowledge base, and improve opportunity for interaction between agencies.  The cost of the second liaison is easily balanced by the cost savings realized from not having to draft BAs.

On an individual project basis, mitigation fees are anticipated to range from $10,000 to 10 or 20 times that amount.

“MaineDOT has used an estimate that up to $750,000 annually could be directed to mitigation fees under the PBO, similar to level at the inception of Maine’s wetland mitigation program,” Gates said.

If costs of participating in the PBO are likely to exceed benefits for a given project, managers may opt to use individual consultations, as in the past.  MaineDOT will be tracking direct and indirect costs and benefits particularly over the first several years of using the Atlantic salmon PBO.

Eco-Logical Grant

The effort to develop a programmatic approach got a large boost when MaineDOT received a $250,000 Eco-Logical Implementation Assistance grant in 2013. FHWA’s Eco-Logical approach encourages state DOTs and Metropolitan Planning Organizations (MPOs) to engage project partners such as USFWS early in the process and to collaborate on integrating both transportation and ecological goals.

The grant allowed MaineDOT and its partner agencies to analyze their environmental screening processes and eliminate duplicative steps. The grant also coincided with MaineDOT’s performance measure to deliver of at least 80 percent of projects within 30 days of the scheduled advertise date.

Challenges and Lessons Learned

“We found that two of the key ingredients for success are to have internal expertise and to have an internal champion,” Gates said.  She also recommended the following strategies:

• Understand and be able to articulate benefits and costs to each agency involved.
• Maintain flexibility in schedule of tasks to allow for inevitable workload demands.
• Develop internal executive-level support and an internal project coordination team as soon as possible.
• Reach out to partner agencies at the outset and maintain close communication throughout the project duration.
• Should roadblocks crop up, consider involving partner organizations’ regional offices or federal agency officials;
• Allow for flexibility and changes in approach based on new ideas, unexpected barriers, or shifts in staffing.

Staff from the transportation and environmental agencies expect that the approach will benefit both transportation project delivery and species recovery efforts.

For more information, link to the Maine Atlantic Salmon Programmatic Consultation web page or contact Judy Gates, Director, MaineDOT Environmental Office, at [email protected].