BIOLOGICAL RESOURCES

1. BIOLOGICAL RESOURCES Ken Cannon ODOT Aquatic Biology and Fish Passage Program Coordinator

2. Topics to Discuss: • Federal Endangered Species Act (ESA) • Fish passage plan approval • In-water work timing • Hydroacoustic impacts from pile driving • Questions & Answers

3. Mandate of the FederalEndangered Species Act (ESA) • 1900+ listed species in the US. • Under Section 7 of the ESA, all Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species, or destroy or adversely modify its designated critical habitat.

4. Federal Nexus → Triggers ESA (ODOT is FHWA’s non-federal representative) • Federal Funds (FHWA) • Federal Property (Forest Service, BLM) • Federal Permit (USCOE) • Section 7 requires consultation with • National Marine Fisheries Service (NMFS) and/or • US Fish and Wildlife Service (USFWS) Consultation is Required Before a Project is Authorized

5. ‘Take’ is Prohibited by the ESA, unless a permit has been issued through consultation with the NMFS or USFWS • Take = “harm, harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect” • Harm = “significant habitat modification or degradation that results in death or injury” • Harass = “significantly disrupts normal behavior patterns” including “breeding, feeding or sheltering”

6. Consultation:1. Biological Assessment (BA) • A document written by a biologist to determine the project impacts on listed species. • Describes the project, baseline conditions, and includes an analysis of effect. • Includes a “Finding of Effect” for listed species & designated critical habitat

7. Finding of Effect: Species • No Effect (must document, but no BA needed) • Not Likely Adverse Affect (NLAA) • Likely Adverse Affect (LAA) • Adverse modification of critical habitat Habitat

8. 2. Biological Opinion (BiOp) • Jeopardy Analysis • Incidental Take Statement • Terms and Conditions

9. Think of the Biological Opinion (permit) as a fishing license, you must have it to be legal! • Any form of ‘take’ is illegal without a BiOp and accompanying Incidental Take Statement.

10. Magnuson-Stevens Act • Essential Fish Habitat (EFH) = waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity • Covers: coastal pelagics, ground fish Pacific salmon • Appended to the ESA BA

11. Federal ESA Permits • Letter of Concurrence (LOC) • Biological Opinion (BiOp) • Jeopardy Opinion • - Bad News The Permit Must be on Site During Construction

12. Do I Have to Write a New BA for Each Project? • No… your project may fit a programmatic. • Standard Local Operating Procedures for Endangered Species (SLOPES) Programmatic Biological Opinion

13. ODOT’s BA Qualification Training • July 8-9, 2009 • 2-Day Training & Test • Must Be Qualified to Write or Review BA’s for ODOT under contract • Must Maintain Qualification and renew every 3 years To Register: Lorrie Schaefer at 503-986-3840 By E-mail: ODOT.HR.Training@odot.state.or.us

14. Location of BA Template and Guidance • Electronic versions ODOT NRU Biology Publication Internet site: http://www.oregon.gov/ODOT/HWY/GEOENVIRONMENTAL/biology.shtml This web location has the latest versions of the ODOT BA Template, Writing Guidance, and BA Checklist to download

15. ESA Documentation TimelineFor Construction Projects Project Footprint Advanced Plans (90 %) Plans, Specification and Estimate (PS&E) Preliminary Plans (30 %) 10 mo. 9 8 7 6 5 4 3 2 1 Bid Let Submit Formal BA (LAA) Receive Biological Opinion/Take Statement (LAA) or Letter of Concurrence (NLAA) Pre-consultation

16. Transmittal Process & Timeline • BA goes to ODOT Environmental, then Action Agency (e.g., FHWA) transmits directly to Services (135 Days) NOTE: allow an additional 2 weeks for Action Agency to transmit to Regulatory Agency Must Program at least 150 Days into Project Schedule (from PSE Date) to Allow for ESA Timelines

17. When You Receive the Permit(s) • Read & review all permits • Assure all BMP’s and T&C’s of permit get into final project contract documents • ODFW In-water work period • ID no work zones on plan sheets • Include OHW elevation on plan sheets • Work with specification writer and appropriate designer to develop final contract documents (plans & specs)

18. Implementation and Construction • The process does not stop once the permit is received • Terms & Conditions from the permit mustbe reflected in the construction documents and contract (plans & specifications) • Long-term maintenance & reporting (typically 5-years) • Responsibility of the Local Agency

19. Re-Initiation of Consultation • All ESA permits include a standard re-initiation clause • Triggers for re-initiation may be listed

20. Re-Initiation • Incidental take is exceeded • New information, the action may affect a listed species in a manner not previously considered • The action is modified in a manner that causes an effect not previously considered • New species listing or critical habitat designation • Permit expiration

21. Successful Projects Involve… • Effective scoping • - ID critical natural resource elements • - ID construction alternatives and associated costs • - ID mitigation opportunities and strategies • Understanding of the action • Early coordination and pre-consultation with NMFS/USFWS liaisons

22. Fish Passage

23. ODFW State Fish Passage Statute • ORS 509.585 ODFW Fish Passage • http://www.dfw.state.or.us/fish/passage/ • “Must Provide Fish Passage” Applies to streams with native, migratory fish (present & historically present)

24. Fish Passage Must Be Addressed... • At artificial obstructions (culvert, bridge, tide gate) • Where native migratory fish are currently or were historically present, and • When a "trigger event" will occur OR • When the OFWC identifies an emergency location, condemns a passage site, or identifies a "priority" location

25. ODFW Statute Triggers • “Culvert Triggers”: culvert extensions or repairs, slip-lining, new aprons, 50% or greater repairs, 50% removal of roadbed, extension of roadbed, new wingwalls, etc… • “Bridge Triggers”: new bridge, replacement bridge, over 50% of existing bridge elements are cumulatively removed, replaced, filled, or added through time • Waiver & Exceptions (through ODFW)

26. Waivers and Exemptions • Waivers • Passage would currently benefit native migratory fish • Mitigation which provides a net benefit is required • In effect until next trigger • Exemptions • If passage would currently provide “no appreciable benefit” • No mitigation required • Can be revoked, in which case passage is required immediately

27. Fish Passage Plan • Fish passage plan approval: • ODFW • NMFS • Discuss early in project development

29. Fish Passage Design Considerations • State Statute via. ODFW web site • ODOT Hydraulics Manual • ODFW Fish Passage Coordinator • ODOT–ODFW Liaisons Where do I go for more information?

30. In-water Work Timing • Know the in-water work window • How will the in-water window effect the construction timeline? • Applying for a variance

31. Pile Driving Impacts

33. Hydroacoustic Impacts • Pile Driving impacts • Vibratory hammer versus impact hammer • Pile size • Substrate • Attenuation technology • Bubble curtains • Monitoring • Cost to the project

34. Bubble Curtain

35. Questions?