Ecological Training Natural Resource Mitigation ODOT Mitigation Program- Overview and Process

1. Ecological TrainingNatural Resource MitigationODOT Mitigation Program- Overview and Process ODOT Office of Environmental ServicesEcological Section

2. Mitigation Background • Some definitions….. • Mitigation • The action of reducing the severity, seriousness, or painfulness of something • To lessen in force or intensity • Compensate • Reducing or offsetting the unpleasant or unwelcome effects of something • Making up for a loss • Compensatory Mitigation • For ODOT this would be actions to offset negative impacts to natural resources resulting from transportation projects • Replacement of lost functions and values and/or ecological services

3. Mitigation Background • Mitigation occurs after avoidance and minimization measures have been exhausted • Mitigation is the result of negotiated waterway permits and /or other required permits/approvals • Mitigation includes the preservation, restoration, and/or creation of natural areas and systems • ODOT has been involved with mitigation for at least 20 years, starting with wetland mitigation

4. What types of natural resource mitigation is ODOT involved with? Stream Mitigation Wetland Mitigation Endangered Species Mitigation (AKA Conservation Measures) Stormwater Mitigation (Office of Hydraulic Engineering) Scenic River Mitigation Other

5. 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) • Ohio Isolated Wetland Rule • Federal Endangered Species Act • Section 7 • Programmatic Biological Opinion on the Indiana bat • Other laws- Scenic River, Section 106, 4(f), 6(f), etc.

6. 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 ODOT mitigation project that occurs within their boundaries Over 5,000 acres of mitigation land are in ODOT’s inventory under protection (and growing on a daily basis)

7. Overview Overview • ODOT owns over 130 acres of wetland bank credits at approximately 9 different wetland banks • Multiple ODOT mitigation sites have “pooled credits” for future ODOT use • Stream, wetland, and species sites • Over 100,000 linear feet of stream • Over 50 acres of wetlands • Over 2,000 acres of species • Most of ODOT’s mitigation sites are protected in perpetuity via a legal protection instrument as required by regulations

8. Overview Currently, ODOT has 18 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.

9. Overview • ODOT Mitigation Inventory is our “one stop shop” and clearinghouse of information for ODOT’s Mitigation Program • Can search by list, county, or using the map function • Pertinent project information for each site (permits, other approvals, permit compliance reports, mitigation release letters, legal instruments, etc) http://www.dot.state.oh.us/Divisions/Planning/Environment/Ecological_Resources_Permits/MitigationInventory/Pages/default.aspx

10. Options for Mitigating • Mitigation Bank • Public or Private third party bank sponsor • Approved by Interagency Review Team (IRT) via banking instrument • Site is established before credits can be sold • Liability/responsibility is transferred from applicant to bank sponsor for all aspects of mitigation • Multiple wetland mitigation banks in Ohio. Price widely variable per watershed. • Results in large scale mitigation projects with a high level of assurances to IRT, both ecologically and financially • Highest preference in the USACE Mitigation Rule

11. Options for Mitigating • In-Lieu Fee (ILF) • ILF sponsor must be a natural resource based state/local agency or non-profit • Approved by Interagency Review Team (IRT) • Advanced credits can be sold prior to mitigation site development. Have 3 years to complete the mitigation on the ground. • Liability/responsibility is transferred from applicant to ILF sponsor for all aspects of mitigation • New to Ohio. Should be many options by the end of 2014 for streams and wetlands. Statewide and regional options. • Results in large scale mitigation projects with a high level of assurances to IRT • Second preference in the USACE Mitigation Rule

12. Options for Mitigating • Permittee Responsible Mitigation (PRM) • Permittee is responsible for all aspects of mitigation • Locating opportunities, property acquisition, permitting, design and planning, project implementation, monitoring and adaptive management, long term protection and management • Approved by USACE/OEPA through the applicants permit process • Must meet performance standards in permits • Can result in small or large scale projects.

13. Options for Mitigating PRM Continued…. • Level of ecological and financial assurance is not “viewed” as “being on par” with banks/ILFs • Third preference in USACE mitigation rule • ODOT is perhaps “unfairly” lumped into this category with the one time applicants • In many instances, PRM can prove to be a cheaper alternative while still providing quality mitigation • ODOT has contracted multiple times with specialized teams for full delivery “turnkey” PRM projects that has resulted in high quality mitigation, while still providing cost containment • Can still conducted PRM with “significant ecological justification”

14. 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

15. Stream restoration - Remediating historical impacts or project incurred impacts as mitigation FRA-270/315-23 – Panhandle Dam Removal – Olentangy River SUM-8 PIDs 24507/24508 – Pond Brook restoration

16. Wetland Restoration/Creation HOC/ATH-33 PID 14040 Wetland Mitigation Site

17. 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

18. 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/Anti-Deg • Endangered Species Mitigation/Conservation • No rules currently exist. Case by case • Species dependent based upon recovery plans • National guidance forthcoming?

19. Mitigation Location Guidelines • For stream/wetland mitigation • On site (within 1 mile) has historically been the preference • Should be within 8 digit HUC • Can move outside of the 8 digit HUC on case by case basis with approval • Order of preference per rules: Banks, In-lieu fee, permitteeresponsible • For endangered species conservation • For the Indiana bat, forested habitat with known Indiana bat records (female/juvenile)

20. Locating mitigation opportunities This can be extremely difficult if not impossible in some parts of the state Director of ODOT only has eminent domain power for wetland mitigation Must be willing sellers for stream/endangered species mitigation This process can take 2-4 years to complete and is not schedule friendly Plan ahead and accordingly!

21. 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

22. What is ODOT’s process for mitigation? • When incorporating real estate tasks, the process is 13 steps • Real estate tasks overlap with many of the environmental task categories and constitute a significant portion of the process, time, and costs • Property research, title reports, appraisals, identifying and qualifying 3rd party holders, negotiations/closings, preparation and recording of instruments, etc. • OES manages the real estate process for mitigation sites • OES coordinates with Office of Real Estate and District Real Estate offices as appropriate

23. Locating mitigation opportunities • Mitigation Opportunities • Can be found through existing ODOT pooled mitigation sites, ILFs,orbanks • 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. project based, watershed based, management unit based, district boundary based, etc.)

24. 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 • ILFs, 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 acts as toolbox from which ODOT can shortlist and act on mitigation options

25. 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 • Waterway Permits Manual covers mitigation plan requirements • USACE Mitigation Rule and Guidelines Checklist • 404 permit cannot be approved until USACE approves Final Mitigation Plan

26. 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

27. Mitigation plans • For endangered species mitigation, the USFWS requires a conservation banking prospectus • ODOT is working with USFWS to develop a more streamlined process for “single user” sites • Similar type of document as a stream/wetland mitigation plan, but with less engineering detail typically because primarily preservation • ODOT establishing pooled bat habitat conservation areas in various areas of the state • SCCC2 Bat Conservation Area – approx. 2,500 acres • Conducting inventory in other parts of Ohio to have statewide coverage in conjunction with our Indiana bat Programmatic Agreement.

28. 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 need OES and/or agency review • Some projects may have permit deadlines for completing the construction of the mitigation project

29. Mitigation site monitoring • Typically a 5 year monitoring period 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

30. 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 and/or after review of annual PCR • Comments typically performance standard based • ODOT may conduct adaptive management as necessary • The goal is to obtain mitigation release letters at the end of the five years of monitoring

31. 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.)

32. 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.) • Developing a better process for reviewing these sites

33. 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

34. 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

35. 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

36. SCI-823-0.00 (PID 19415) Project ExampleProject Impacts: • 773 acres of forested habitat • Suitable habitat for federally listed bats • 77,360 linear feet of stream impact • 10.42 acres of wetlands • Impact to two state endangered plant species • Impact to a known mussel bed at Little Scioto Creek

37. SCI-823-0.00 (PID 19415) Project ExampleEnvironmental Commitments: • Seasonal clearing of all trees to avoid direct impacts to federally listed bat • Separate tree clearing contract is necessary to meet schedule • Seasonal work restrictions on some streams • No work in the water from April 15 to June 30 for any stream designated Class III PHWH or WWH. • Mussel survey and relocation on the Little Scioto River • Estimated cost of $20,000 • Rare Plant relocations to protected properties • Done by ODOT-OES • No build zones to protect streams and wetlands within the right of way

38. SCI-823-0.00 (PID 19415) Project ExampleEnvironmental Commitments: • Bat habitat conservation measures • Protection of a minimum 773 acres of suitable forested habitat in perpetuity • Estimated cost $5-10 million • Stream mitigation • 117,298 linear feet of streams preserved and/or restored at multiple sites • Estimated cost $12.5-12.6 million • Wetland mitigation • 22.55 acres obtained from two wetland banks and an ODOT pooled mitigation area • Estimated cost $1-1.1 million • Environmental compliance monitor • Incorporated into the contract

39. Questions? QUESTIONS?