The Oregon Department of Transportation (ODOT) and Federal Highway Administration (FHWA) have significantly reduced review time and cost for conducting endangered species consultations for their projects through implementation of a unique statewide programmatic consultation that streamlines procedures while ensuring conservation of potentially affected species listed under the Endangered Species Act (ESA).
ODOT’s John Raasch explains that “prior to the Federal-Aid Highway Program (FAHP) ESA programmatic consultation process, ODOT was spending six to nine months preparing a Biological Assessment and awaiting the Biological Opinion. It was expensive and time consuming. With the FAHP [programmatic ESA consultation], that consultation time is now one to two weeks. Due to the process being so efficient, ODOT can submit documents later in the project planning phase when more specific details regarding project design are available, resulting in fewer revisions and shorter review timelines.”
Oregon DOT’s ESA Programmatic Consultation helps streamline projects such as this innovative culvert design. Photo: ODOT
Background
In the late 1990s and early 2000s, numerous west coast salmonid species (Chinook, Chum, Coho, steelhead, Sockeye and Bull Trout) were listed under the Endangered Species Act (ESA). ODOT, whose road and bridge projects border and cross a high number of salmon-supporting streams, began hiring more biologists and consultants to prepare the numerous and lengthy Biological Assessments (BAs) that were now required and to manage the ESA Section 7 consultation process.
After many years of preparing separate BAs evaluating predictable impacts and implementing similar mitigation measures, and completing separate Section 7 consultations which took on average six to nine months, ODOT and FHWA approached the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) about a programmatic approach to ESA Section 7 consultations for these species. Taking advantage of the collaborative and problem-solving spirit built between ODOT, FHWA, USFWS and NMFS staff biologists over the preceding years, the agencies agreed on a set of procedures and tools for implementing the Federal Highway Administration (FHWA) statewide programmatic Endangered Species Act (ESA) Section 7 consultation and Magnuson Stevens Act (MSA) consultation with NMFS and USFWS.
The FAHP programmatic consultation for Highway Projects resulted in two biological opinions (BO), one from USFWS and one from NMFS, which provide ESA coverage for the majority of highway construction projects funded by the FAHP and administered by ODOT. To qualify for the FAHP programmatic consultation, the project must:
- Result in an ESA determination of “may affect” (likely or not likely to adversely affect) for one or more of the specified federally-listed species or designated critical habitat (CH). The FAHP programmatic authorizes “take” for species most likely to be directly impacted by highway projects including all ESA-listed fish species and associated CH in Oregon.
- Result in a determination of “may affect” fisheries resources governed by the MSA.
- Result in a National Environmental Policy Act (NEPA) classification of categorical exclusion or environmental assessment.
- Not involve specific excluded activities.
Outcome-focused design standards that were agreed upon by ODOT, FHWA, NMFS and USFWS, and that provide benefits to species and their habitats, are a key to the success of the FAHP programmatic. Some examples of these outcome-focused design standards are shown in Table 1.
| Table 1. Examples of ODOT’s design standard specifications for aquatic species and riparian restoration | |
| Fluvial | All permanent stream crossing replacements over aquatic habitat that support ESA-listed species covered by the FAHP programmatic must span the functional floodplain by meeting specified fluvial performance standards. A clear unobstructed opening must be maintained above the general scour prism. Streambank and channel stabilization may be applied outside and below the general scour elevation. Bridges that are single span are typically 1.5x active channel width and those with multiple spans are typically 2.2x, a minimum |
| Pile driving | When using an impact hammer to drive or proof steel piles, unless otherwise approved, one of the following sound attenuation methods must be used to effectively dampen sound
o Completely isolate the pile from flowing water by dewatering the area around the pile o IF water velocity is 1.6fps or less, surround the pile being driven with a bubble curtain that must distribute small air bubbles around 100% of the pile perimeter for the full depth of the water column, as show or approved o If water velocity is greater than 1.6 fps, surround the pile being driven by a confined bubble curtain that must distribute air bubbles around 100% of the pile perimeter for the full depth of the water column, as shown or approved |
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Stormwater management |
Most stormwater management facilities will include conveyance to a receiving water, if only for overflow from events larger than the design storm. The FAHP imposes the following three conditions on the conveyance system:
o Maintain natural drainage patterns. Do not route the stormwater to a stream or wetland that would not naturally receive it. o Prevent erosion of the flow path from the project to the receiving water and, if necessary, provide a discharge facility made entirely of manufactured elements (e.g., pipes, ditches, outlet, and outlet protection) that extends at least to ordinary high water. There should be no erosion of the banks of the receiving water. o To the maximum extent feasible, ensure that water quality treatment for highway runoff from all contributing impervious area is completed before commingling with runoff for conveyance. Mixing with stormwater from out the CIA (i.e., non-highway stormwater) complicates BMP design, and can introduce non-highway related pollutants into the treatment facility, increasing maintenance issues, if comingling is unavoidable, BMPs must be designed to be fully effective during the WQDS. |
There are four main phases of project implementation under the FAHP programmatic: early coordination, notification, construction, and post-construction. The details of project implementation are described in the FAHP Programmatic User’s Guide. As the lead agency, FHWA administers the FAHP programmatic, which includes local and state projects within the scope of the program. Projects that require U.S. Army Corps of Engineers (USACE) permits can use the FAHP programmatic to meet USACE ESA requirements. The FAHP action area includes all geographic areas in Oregon where transportation projects directly or indirectly affect ESA-listed species covered by the FAHP programmatic.
ODOT has found that conservation, consistency and efficiency are the benefits of the FAHP programmatic:
- Conservation: the FAHP focuses on the outcome for covered species and their habitat.
- Consistency: the FAHP provides predictable costs, design standards, outcomes for covered ESA-listed species, and agency review timelines.
- Efficiency: in addition to predicable FAHP permitting components, an online form consisting of check boxes, drop downs and a few short text fields replaces the 200+ page BAs previously common at ODOT.
The FAHP programmatic consultation would not be possible without the trust built between participating agencies over time. As a result of its success, NMFS and USFWS were able to defer approval responsibility to FHWA for a large portion of projects.
According to ODOT, as of late 2015, 134 projects had been completed under the programmatic since its inception, with 77 completed or in construction. About half of those projects were local agency projects, and just over half of the projects required only FHWA approval with NMFS notification.
Implementation Tools for ESA Consultations
Several tools were developed to meet the reporting requirements of the FAHP programmatic and assist with information sharing and management. These include:
- Initiation, Notification, Construction Inspection and Completion forms.
- Webmap – The location and status of all projects implemented using the FAHP are available for stakeholders to track via ODOT’s FAHP Projects Map. Each project is symbolized by its current status and includes a link to the project files. These contain more detailed information ranging from plan sheets to notification forms to construction monitoring reports.
- Project Tracking – All projects that use the FAHP are documented and tracked in a centralized data management system and coordinated by ODOT. Project impacts, enhancements, and take are all tracked, and quarterly status reports are available to stakeholders.
- User’s Guide – The FAHP user’s guide is a comprehensive review of the processes used to implement the FAHP. The user’s guide provides design standards, and detailed instructions for how to coordinate, notify, and monitor projects.
For agencies struggling with long and unpredictable ESA consultation processes, ODOT has the following advice if considering a programmatic ESA consultation:
- Consult with other states on successful programmatic ESA consultations that have been implemented. Look into the tools they created and data tracking they provide. See if anything can be built upon to meet your needs.
- Continue to build relationships with FHWA, NMFS and USFW. Without strong relationships between ODOT, FHWA, NMFS and USFW, this consultation would have been very difficult, if not impossible to obtain.
- Be realistic on your time frame for obtaining the programmatic ESA consultation. Ensure that you take the time to collaborate internally and externally to ensure success.
For more information on ODOT’s FAHP programmatic, contact Cash Chesselet, ODOT FAHP Coordinator, at [email protected], or Cindy L. Callahan, Environmental Specialist/Biologist, FHWA Oregon and Washington Divisions/Resource Center, at [email protected].