BIOLOGICAL RESOURCESBIOLOGICAL RESOURCES

Ken Cannon ODOT

Aquatic Biology and Fish PassageProgram Coordinator

Topics to Discuss:Topics to Discuss:

• Federal Endangered Species Act (ESA)• Fish passage plan approval• In-water work timing• Hydroacoustic impacts from pile

driving

• Questions & Answers

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.

Federal Nexus Federal Nexus →→ Triggers ESA Triggers ESA

• 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)

(ODOT is FHWA’s non-federal representative)

Consultation is Required Before a Project is Consultation is Required Before a Project is AuthorizedAuthorized

‘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”

Consultation:Consultation:

1. Biological Assessment (BA)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

Finding of Effect:Finding of Effect:

• No Effect (must document, but no BA needed)

• Not Likely Adverse Affect (NLAA)• Likely Adverse Affect (LAA)

• Adverse modification of critical habitat

2. Biological Opinion (BiOp)2. Biological Opinion (BiOp)

• Jeopardy Analysis

• Incidental Take Statement

• Terms and Conditions

• Think of the Think of the Biological Opinion Biological Opinion (permit) as a fishing (permit) as a fishing license, you must have it license, you must have it to be legal! to be legal!

• Any form of Any form of ‘take’‘take’ is is illegalillegal without a BiOp without a BiOp and accompanying and accompanying Incidental Take Incidental Take Statement.Statement.

Magnuson-Stevens ActMagnuson-Stevens Act

• Essential Fish Habitat (EFH) = waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity

• Covers: coastal pelagics,ground fishPacific

salmon• Appended to the ESA BA

Federal ESA PermitsFederal ESA Permits

• Letter of Concurrence (LOC)

• Biological Opinion (BiOp)

• Jeopardy Opinion - Bad News

The Permit MThe Permit Mustust be on Site During be on Site During ConstructionConstruction

Do I Have to Write a New BA for Do I Have to Write a New BA for Each Project?Each Project?

• No… your project may fit a programmatic.

• Standard Local Operating Procedures for Endangered Species (SLOPES) Programmatic Biological Opinion

ODOT’s BA Qualification ODOT’s BA Qualification TrainingTraining• 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 503-986-3840By E-mail: ODOT.HR.Training@odot.state.or.us

Location of BA Template and Location of BA Template and GuidanceGuidance

• 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

ESA Documentation TimelineFor Construction Projects

Bid Let

Preliminary Plans (30 %)

Advanced Plans (90 %)

Plans, Specification and Estimate (PS&E)

10 mo. 9 8 7 6 5 4 3 2 1

Project Footprint

Submit Formal BA

(LAA)

Receive Biological Opinion/Take

Statement (LAA) or Letter of

Concurrence (NLAA)

Pre-consultation

Transmittal Process & TimelineTransmittal 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

When You Receive the When You Receive the Permit(s)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)

Implementation and Implementation and ConstructionConstruction • The process does not stop once the

permit is received

• Terms & Conditions from the permit must be reflected in the construction documents and contract (plans & specifications)

• Long-term maintenance & reporting (typically 5-years)

Responsibility of the Local Agency

Re-Initiation of ConsultationRe-Initiation of Consultation

• All ESA permits include a standard re-initiation clause

• Triggers for re-initiation may be listed

Re-InitiationRe-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

Successful Projects Involve…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

Fish PassageFish Passage

• ORS 509.585 ODFW Fish Passagehttp://www.dfw.state.or.us/fish/passage/

“Must Provide Fish Passage”

Applies to streams with native, migratory fish (present & historically present)

ODFW State Fish Passage StatuteODFW State Fish Passage Statute

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

Fish Passage Must Be Fish Passage Must Be Addressed...Addressed...

ODFW Statute TriggersODFW 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)

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

Waivers and ExemptionsWaivers and Exemptions

Fish Passage PlanFish Passage Plan

• Fish passage plan approval:

ODFW

NMFS

• Discuss early in project development

Fish Passage Design Fish Passage Design ConsiderationsConsiderations

• State Statute via. ODFW web site• ODOT Hydraulics Manual• ODFW Fish Passage Coordinator• ODOT–ODFW Liaisons

Where do I go for more information?

In-water Work TimingIn-water Work Timing

• Know the in-water work window

• How will the in-water window effect the construction timeline?

• Applying for a variance

Hydroacoustic ImpactsHydroacoustic Impacts

• Pile Driving impactsVibratory hammer versus impact

hammerPile sizeSubstrate

• Attenuation technologyBubble curtains

• Monitoring

• Cost to the project

Bubble CurtainBubble Curtain

Questions?Questions?