Presentation on theme: "Mitigation Alternatives"— Presentation transcript:
1 Mitigation Alternatives What works and where we have issues.Carolyn Brown – (530)Jeff Swindle – (530)Caltrans District 3, Marysville
2 MITIGATION LETS TALK!!! Our goals for this round table are: Present the six ways we have identified to accomplish mitigation and the flowcharts mapping the process.Share information on mitigation and advanced mitigation processes and opportunities.Develop a list of recommendations on changes needed for offsite and advanced mitigation to be a more viable option/process.Think about:How are you accomplishing offsite or advanced mitigation in your district/region?How are you defining advanced mitigation?What has worked ?What have you learned…would you do anything differently next time?We have found there are lots of rules and regulations but no mitigation process. We are taking a process that was developed to deliver transportation projects and trying to make mitigation fit into this.LETS TALK!!!
3 Six Alternatives to Accomplish Mitigation Conservation/Mitigation BanksIn Lieu Fee ProgramsOn-site creationOff-site creationOn-site preservationOff-site preservationBased on North Region Experiences
5 1. Mitigation/Conservation Bank Credits for T&E Impacts Credit Vs. ValueConservation Bank vs. Turnkey(BEI for USACE, BA for DFG)Stewardship Branch maintains Spreadsheet with available credits and costsMitigationBank CreditsContact appropriate bank for current pricesAre excess credits available from previous project modifications?YesNoStewardship Branch contacts R/W to amend contractBiologist has PM contact R/W to initiate purchaseR/W Sends amendment and BO to BankPM Confirm funds available. Request purchaseBiologist sends BO to R/WBank amends contract sends copy to R/W for signatureWho keeps original?R/W contact bank to purchase credits and negotiate priceMitigation requirement satisfiedR/W sends signed copy to BankBank sends sales agreement to R/WLegal reviews sales agreement.Need to have language to allow transfer of credits if impacts are reduced. Indemnification clause added. Default clause added. Others as necessary.Bank sends executed agreement to R/WR/W sends sales agreement to LegalBank sends to USFWS for signatureEnvironmentalPMLegalR/W sends copy to BiologistR/W signs agreement sends to bankBank sends agreement to USFWS for signatureOutside of CaltransShow StoppersR/W processOutcomeNotesBank sends bill of sale to R/W
6 2. 404 In Lieu Fee Programs (USACE, RWQCB) (A) USACE Funds Available (can only be used for NWP):Habitat Cost per acre as of 1/20/08Vernal Pools $350kSeasonal Wetland $150kSeasonal Marsh $150kPerennial Marsh $150kOpen Water $150kRiparian $225kRiverine Aquatic Bed $150kShallow Water Marsh $183kIn Lieu Fee Programs (USACE, RWQCB)In Northern California USFWS and USACE don’t recognize each others In Lieu Fee ProgramUSACE 404 permit required. (A)Biologist request copy of receiptFederal reimbursement is possible if use four way agreement. Has been done in D7.RWQCB 401 Certification(Northern California)Mitigation requirement satisfiedNFWF sends receipt to USACE and CT confirming paymentYesNoProject qualifies for NWP?Lahonton RWQCBUSACE San Francisco region doesn’t accept In Lieu Fee Programs.R/W send payment to NFWFCaltrans does not record restrictions or CE’s within our operating R/WCan’t use In-lieu fee programCentral Valley RWQCBSend to NFWFfor reviewSend all copies with invoice to R/WDraft Agreement4 copies with original signaturesYesOn site/off site options availableNoLegal reviewand modificationSignature order:NFWF (includes invoice)USACE contactCT LegalDistrict DirectorState only fundsThree Way Agreement RequiredReimbursement of Federal fundsFour Way Agreement RequiredRequest from Stewardship BranchAttach LOA.(Actual in lieu agreement)Can’t use In-lieu fee programSend to USACEfor review(C) FHWA issues: For Federal reimbursement a formal agreement between the USACE and the ILF sponsor must have the following:Geographic service areaAccounting proceduresMethods for determining fees and creditsA schedule for conducting the activities that will provide the compensatory mitigationPerformance standards for determining success of mitigation siteReporting protocols and monitoring plansFinancial, technical, and legal provisions for remedial actions and responsibilities (contingency fund)Financial, technical, and legal provisions for long term management and maintenanceA provision that clearly states that the legal responsibility for ensuring the mitigation in terms of the permit conditions are fully satisfied rests with the ILF sponsor.A closed schedule for completing the ILF mitigation. This ensures that the mitigation will be accomplished in a timely way, and will avoid long term accounting/auditing problems.EnvironmentalPMLegalOutside of CaltransShow StoppersR/W processOutcomeNotes
7 2b. In Lieu Fee Programs (USFWS, DFG, NOAA) Some agencies don’t recognize other agencies In Lieu Fee Program(B) USFWS Fund Active:CRLF Expires 10/20/10VELB ClosedGGS Expires 10/20/10VP Cons. Fund Expires 9/30/12Delta Smelt Expires 10/18/10CTS Expires 9/30/12Kit Fox Expires 10/20/102b. In Lieu Fee Programs (USFWS, DFG, NOAA)USFWS (B)If dual listed species will need a consistency determination from DFGDFG/WCBOak Woodlands Conservation FundRequest In Lieu Fee agreement from USFWS staff if not attached to BONOAAISSUE:Program not appropriateFor Caltrans 8/07Met with WCB and DFG. Not willing to take on our mitigation responsibilityFederal reimbursement is possible if use four way agreement.Additional information neededUSFWS sends agreementCNLM reviews changesCaltrans Legal Modifies agreement. Make 3 way (state only funds) or 4 way (FHWA reimbursement)No existing In-Lieu Fee program but District 7 has one being reviewed by DFG legal.Use 3 way agreement (CT version) agreed to with CNLM and USFWS. Can not use the one attached to the program as it conflicts with our statutory authority.Agreement ready for signatureUSFWS signs firstCNLM signs secondCT R/W signs LastMitigation requirement satisfiedR/W ProcessR/W receives Receipt of PaymentCopy to Biologist(C) FHWA issues: For Federal reimbursement a formal agreement between the USACE and the ILF sponsor must have the following:Geographic service areaAccounting proceduresMethods for determining fees and creditsA schedule for conducting the activities that will provide the compensatory mitigationPerformance standards for determining success of mitigation siteReporting protocols and monitoring plansFinancial, technical, and legal provisions for remedial actions and responsibilities (contingency fund)Financial, technical, and legal provisions for long term management and maintenanceA provision that clearly states that the legal responsibility for ensuring the mitigation in terms of the permit conditions are fully satisfied rests with the ILF sponsor.A closed schedule for completing the ILF mitigation. This ensures that the mitigation will be accomplished in a timely way, and will avoid long term accounting/auditing problems.EnvironmentalPMLegalOutside of CaltransShow StoppersR/W processOutcomeNotes
8 3. On site Creation (START HERE) Mitigation in operating R/W can NOT be protected in perpetuity. As of recent, agencies are requesting in perpetuity protection.Biologist develops Mitigation Plan (permit driven or in house only) in coordination with Revegetation Specialist and Landscape Architect as appropriate.$ location(State Furnished, BEES, Line Item)Biologist to Coordinate with Landscape regarding need of natives in plant mix.EnhancementRestoration/CreationRevegetation (defined as restoration of temporarily impacted areas that fall under resource/regulatory agencies jurisdiction, ex. 404, 1600, riparian)Erosion ControlLandscape responsible for erosion control plans and specificationsBiologist: writes plan and assists Landscape with species list and specsAppropriate specieslisted in specs.Landscape takes lead to develop Stand Alone planting projectContour grading required?Coordinate with Revegetation Specialist to determine if planting can be done In HouseNoLandscape develops PSE packageYesContract awardedNoNoLandscape to include plans in PSE packageAre grading plans included in PSE?Incorporate planting into Roadway ProjectConstruct projectYesPlans in PSE packageYesRevegetation Specialist to take lead for Revegetation plantingBiologist performs monitoring and yearly reportingRoad ConstructionContractor to complete contour gradingContour grading completedOn Call can be utilized to collect data.Coordinate with Revegetation Specialist and Permitting Agency for replantingRevegetation planting completedDevelop and Implement remedial actions in coordination with Landscape Architect and Permitting AgenciesSuccess criteria met?NoRevegetation Specialist can assist in collecting data. On Call can be utilized to collect data.YesBiologist performs monitoring and yearly reportingBiologist prepares Final Report and requests buy offEnvironmentalPMLegalNoSuccess criteria met?Outside of CaltransShow StoppersYesR/W processOutcomeNotesReceive concurrence from Permitting AgencyMitigation FulfilledBiologist prepares Final Report and requests buy offLandscape
9 4. Off Site Mitigation Creation Options (1 of 2) EnvironmentalPMLegalOutside of CaltransShow StoppersLocate Suitable PropertyR/W processOutcomeNotesWhere will Offsite Mitigation Creation occur?Caltrans owns fee title to property. #4Fee Title to be transferred to another entity. #3Create onNon-Caltrans PropertyRelease an RFP for projectR/W desires a legally binding agreement with agency to take title to propertyObtain Environmentally clearanceR/W to determine what encumbrances (existing easements ADRC’s, etc) come with propertyISSUE:Caltrans D3 and North Region - do not hold mitigation propertyGo to OFFSITE MITIGATION CREATION OPTION (Slide2, B)Go to OFFSITE MITIGATION CREATION OPTION (Slide 2, A)Obtain ENVIRONEMNTALCLEARANCEIs an endowment required?Sell at auctionYesNoDevelop ADRC/CE (#7)Who will hold EndowmentCan only transfer Endowment to another Public Entity. #3Agreement (Coop) between Agencies spelling out terms before property purchase (R/W POLICY).Prepare PARRequest recorded copy of CE or ADRCPrepare Environmental Document (Cat Ex) to Purchase Property ISSUE #1To Buy in Caltrans nameDevelop Coop, request kick offmeeting with HQR/W ProcessAppraisalMappingPrepare Environmental Document (Cat Ex) to transfer.Go to OFFSITE MITIGATION CONSTRUCTION SlideThrough DGS. If use Transfer of Jurisdictionand Control, CTC must approve.They will want %Buy in another entities name. Must be state, non-profit or quasi-state agency(#2).Acquire Property in Caltrans nameTo remove value from property. R/W says can do it with the permit and removal of development rights. Hasn’t been tested yet. Ex. Bear River ADRC’sThrough CTC.R/W to submit complete package 6 weeks before CTC meetingPrepare CTC/DGS package to Transfer ParcelR/W records deed.Provide documentation that mitigation has been met to project file and Mitigation Stewardship Branch..Go to OFFSITE MITIGATION CONSTRUCTION Slide#1 Type of funding is important. Archeological issue Public Resource Code Level of effort to transfer or acquire property in another’s name needs to be determined. Why should the site be disturbed by Phase II excavation to determine significance and eligibility for the National Register of Historic Places (Federal 106 federal nexus) and the California Register of Historical Resources (5024 State Owned Resources)?Erin/Sue working with Greg King of HQ to determine process 9/4/07). Need concurrence from SHPO – 30 days.#2 current bill would allow transfer of property to Non-profit but doesn’t address the transfer of an endowment. Has passed 10/07.#3 If mitigation is for DFG permit or future permit they must hold Endowment. Our Legal disagrees#4 USFWS seems to want CT to hold fee title and have a manager hold the CE and run it according to an approved plan. ARE WE GOING TO CHALLENGE?#5 Need willing partner. BCAG did, Mendocino won’t. Caution – Requires Coop or Service Contract needed to transfer money to agency.#6 USFS can not put a CE to protect in perpetuity. Under NEPA USFS is lead. Would not do CEQA.#7 DFG not accepting restrictions on property they are to hold.
10 4b. Off Site Mitigation Creation Options (2 of 2) Create onNon-Caltrans PropertyBCreate on Governmentowned landsCaltrans Create onPrivate PropertyPublic Entity developing on private property with CT reviewingRelease an RFP to locate suitable land, design, construct, monitor and manageKelly K – need info.Ex. Forest Service. #6D4 currently working with ACRCD on Sweet Ranch Project.D3 completed creation with BCAG.NOBiologist develops Mitigation Plan in coordination with Revegetation Specialist and Landscape Architect as appropriate.Caltrans releasesmodified RFP(Design/Build)Other Public Agency releases RFPPublic Entity implementsCoop or Service Contract needed to transfer money to Partner Agency.Identify lead to implement ConstructionLEGAL says it is not possibleCaltransEnvironmental Coordinates with Landscape to create stand alone mitigation project.Cooperating AgencyBecomes responsible for Mitigation completionBiologist or Contractor performs monitoring and yearly reportingConstruct projectOn Call can be utilized to collect data if our project and we are implementing.MitigationCompletedLandscape takes lead to develop Stand Alone project. Process for establishing EA.Contract awardedNoDevelop and Implement remedial actions in coordination with Landscape Architect and Permitting AgenciesSuccess criteria met?EnvironmentalPMLegalOutside of CaltransShow StoppersYesR/W processOutcomeNotesLandscape develops PS&E package to implement Mitigation PlanBiologist, other agency or Contractor prepares Final Report and requests buy offReceive concurrence from Permitting AgencyMitigationCompletedLandscape
11 5. On-Site PreservationMitigation in operating R/W can NOT be protected in perpetuity. As of recent, agencies are requesting in perpetuity protection.
13 6. Off Site PreservationPlace CE or ADRC’s on property to remove value so it can be transferred. Can NOT do a gift of gas tax dollars(START HERE)For PreservationR/W to obtain Permit to Enter. Request Title Search to determine potential encumbrances.Biologist does field survey to determine resources available for mitigation. Preliminary estimate of mitigation value.Identify Property to acquire. CE or Fee TitleObtain regulatory agency concurrence on valueIs an endowment required?1. If an endowment is required it can NOT be transferred directly to a non-profit.2. Can use Coop to transfer to Public Agency. Can Not use R/W agreement to transfer via escrow.Develop RFP to locate Preservation SiteOther Specialists do their ThingBiologist request PM to authorize purchase with R/WPM authorizes purchaseBiologist obtains written concurrence on conservation value from Regulatory agencyLandowner reviewBiologist Develops Draft O&M Plan and CE/ADRCLand Manager reviewR/W begins acquisition process.Finalize O&M Plan and CE/ADRCRegulatory Agency reviewFor appraisal and/or an option need; R/W engineering map, Certificate of Sufficiency and Hazardous Waste clearanceHave been unable to accomplish. Timing and restriction issues (ADRC’s)Develop agreement (Coop) between CT and Land Manager spelling out terms before property purchase (R/W policy)Agency provides written acceptance of both(CE)Go to Conservation Easement SlidePurchase CE(Fee Title)Develop Coop between CT and 3rd partyTo buy in another entities namePurchase Fee Title orPurchase Conservation Easement (CE)Caltrans to hold TitleTo buy in Caltrans name and transfer fee titleCoordinator prepares Environmental Documentation to TRANSFER Property.Send Env. Doc to R/W for purchaseTo transfer to another AgencyCT D3 policy - DO NOT hold mitigation property.Confirm $ was transferred and CE recordedNeed Environmental Documentation to PURCHASE Property in Caltrans nameCE and Fee Title. Anytime transfer property from CT must go through CTC for approvalArcheologist prepares report. ISSUE #1Hazardous prepares site reportBiological analysisImplement O&M PlanEnvironmentalPMLegal#1 Archeological issue Level of effort to transfer or acquire property in another’s name needs to be determined. Why should the site be disturbed by Phase II excavation to determine significance and eligibility for the National Register of Historic Places (Federal 106) and the California Register of Historical Resources (502.4 State Owned Resources)?Erin/Sue working with Greg King of HQ to determine process 9/4/07). Need concurrence from SHPO – 30 days.Outside of CaltransShow StoppersR/W processOutcomeNotes
15 Conservation Easement To Purchase Conservation EasementProperty owner must make resource priority, not their operation. USFWS says will not allow another Cottonwood.Need Third Party to hold Easement and do monitoringState Species/ResourceFederal Species/ResourceISSUE:If DFG is to hold property they are not allowing CT to place the Restriction that they would require of CT. How can we pass the property if the value has not been removed from the parcel. NEED TO ASK R/W. R/W says they can use an issued permit as justification. HAS NOT BEEN TESTED YET.What if no permit?Need to meet requirements of Streets/Highways Code and permit requirements.CEQAOaksIf for DFG permit they say they must hold CE and endowment.ISSUE:CT Legal wants clarification. CE holder now responsible for all management. Who is watching CE holder?USFWS wants Banking Level Agreement – CT Legal wants clarification.What does a bank agreement add when it can be terminated when all credits used?CT does not have statutory authority to request service from landowner.Agreement (Coop) between Agencies spelling out terms before property purchase (R/W policy)MonitoringAgency ReviewReportingGo to COOP PROCESS SlideDevelop Draft management planLandowner ReviewSuccess Criteria is metLong term manager reviewProvide documentation that mitigation has been met.OutcomePM processAccept final management planCE RecordedR/W processOutside of Caltrans
16 Contact Janel Excess Lands Who determines if excess? R/W sends request First Round review to all functions– To Sue Bauer for Environmental?Environmental hold placed on propertySellProperty retained by CaltransIncorporate into R/WHow do we get it off of Excess Lands list if not in our R/W?Second RoundEnvironmental clearance requiredSee CTC ProcessSent to CTC for review and authorizationSee CTC ProcessProperty sold at auctionProperty transferred to another AgencyOutcomePM processR/W processOutside of Caltrans
17 Finding Lands ISSUE: Caltrans Policy is not to hold mitigation lands Option: Could find land then locate long term manager. Will need to hold property until transfer.Possible conflict of goals. Their management needs could conflict with mitigation management needs.Identify long term land ownerDFGRCDUSFWSPrivate Land OwnerNon-profitsUniversitiesState ParksForest ServiceBLMRFPDealing with AcademiaISSUE: CT must remove value to transfer and DFG not accepting ADRC’s.ISSUE: Can not transfer Endowment currentlyISSUE: Not all are qualified to take on the tasks. Must be approved by jurisdictional agency.Mitch Dallas (HQ)did thisNeed legislation that allows the transfer of endowmentDo NOT have statutory authority to do Design BuildISSUE: Won’t take property unless adjacent to their property. Refuges not managed specifically for T&E species. Possible conflict of goals when managing a refuge vs. managing for T&E species.Are mitigation needs consistent with Wildlife Area management requirementsYesNoMitigation possibleMitigation not compatibleLocate PropertyIdentify long term managerGo to OFFSITE MITIGATION CREATION SlideIdentify CE holderGo to OFFSITE MITIGATION PRESRVATION Slide
18 Acquisition of interest in land From FINDING LANDS SlideR/W to determine what encumbrances (existing easements ADRC’s, etc) come with propertyBiologist obtains written concurrence on conservation value from Regulatory agencyAcquisition of interest in landR/W to obtain Permit to EnterEstimate Mitigation Value of propertyBiologist does field survey to determine resources available for mitigation.CREATION will require in depth studiesCoordinator Prepares Environmental DocumentOther Specialists (hazardous, Archeo) do their ThingGo to ENVIRONEMNTALCLEARANCE SlideBiologist request PM to authorize purchase with R/WPM authorizes purchaseMOU is not legally binding agreement in CT arena. CT looks at language and determines if legally binding. Uses terms such as Desire instead of ShallLandowner reviewR/W begins negotiationBiologist Develops Draft O&M Plan and CE/ADRCLand Manager reviewAgency reviewFinalize O&M Plan and CE/ADRCAgency provides written acceptance of bothR/W desires a legally binding agreement with agency to take title to propertyAgreement (Coop/MOU?) between Agencies to guarantee they will take property interest. (R/W policy)Go to COOP PROCESS SlideSend Env Doc to R/W for purchaseR/W makes offerCT policy - DO NOT HOLD mitigation property. Depending on permit language it might not satisfy requirements.To buy in Caltrans name with intent to TRANSFERTo buy in another entities nameGo to ACQUIRE IN OTHER’S NAME SlideInterest in Property AcquiredGo to TRANSFER INTEREST IN LAND Slide
19 Transfer interest in land FromACQUISTION OF INTEREST IN LANDSlideIs an endowment required?YesNoDevelop ADRC/CEWho will hold EndowmentCan only transfer Endowment to another Govt Agency. #3Agreement (Coop) between Agencies spelling out terms before property purchase (R/W POLICY).Develop CoopBuy in another entities name. Must be state, non-profit or quasi-state agency(#2).Prepare Environmental Document (CE) to Purchase Property ISSUE #1To Buy in Caltrans nameR/W ProcessAppraisalMappingConfirm Agency placed ADRC or CE.Acquire Property in Caltrans nameThrough DGS ??They will want %Prepare Environmental Document (CE) to transfer.Go to OFFSITE MITIGAITON CONSTRUCTION SlidePrepare CTC/DGS package to Transfer ParcelThrough CTC.R/W to submit complete package 6 weeks before CTC meetingR/W records deed.To remove value from property. R/W says can do it with the permit. Hasn’t been tested yet. Ex. Bear River ADRC’sGo to OFFSITE MITIGAITON CONSTRUCTION Slide