Overview of Everything You Need to Know About Mitigation

Mitigation is defined as everything from avoiding the impact to compensating for losses. Lead agencies (like Caltrans) implement measures to avoid, lessen or compensate for the adverse effects and environmental impacts

Mitigation (CEQ and CEQA Guideline 15370) 1.Avoid the impact altogether by not taking a certain action or parts of an action. 2.Minimize the impact by limiting the degree or magnitude of the action and its implementation. 3.Rectify the impact by repairing, rehabilitating, or restoring the impacted environment. 4.Reduce or eliminate the impact over time by preserving and maintaining operations during the life of the action. 5.Compensate for the impact by replacing or providing substitute resources or environments.

Biological Mitigation is implemented by Caltrans using the following sequencing process Mitigation Sequence – Avoid – Minimize – Mitigate (i.e. Compensate) Compensatory Mitigation is defined as replacing or providing substitute resources. *Focus on Avoidance & Minimization measures to reduce the amount of impacts and mitigation required for a project.

Who Requires Mitigation? – Federal Agencies – State Agencies – CEQA Lead Agencies

Federal Laws, Regulations and Policies National Environmental Policy Act (NEPA) Clean Water Act o Sections 401 and 404 o Mitigation Rule 2008 (Avoid, Minimize, Compensate) (Credit Purchase, In-lieu fee, Permittee responsible) Rivers and Harbors Act o Sections 9 and 10 Endangered Species Act of 1973

Federal Laws cont’d Magnuson-Stevens Fishery Conservation and Management Act o Essential Fish Habitat Coastal Zone Management Act of 1972 Marine Mammal Protection Act Migratory Bird Treaty Act Executive Orders o o o 13112

State Laws, Regulations and Policies California Environmental Quality Act California Endangered Species Act Native Plant Protection Act Sections 1600 et seq. of Fish and Game Code

What are your options? Advance Mitigation Mitigation Credits Mitigation Banks (wetlands/waters) Conservation Banks (species) In-lieu Fee Mitigation Programs Project Specific Mitigation (also known as permittee responsible mitigation)

Mitigation Proposal

Consider the Impact And Regulation What type of habitat/resource will the project impact? What regulation will you be mitigating under? What mitigation requirements do the regulations have? What guidance does the agency provide?

Mitigation Alternatives-Preferred by FHWA and Caltrans Mitigation Bank Credits In-lieu Fee Program Credits Other Programmatic Options Permittee Responsible

Mitigation/Conservation Bank Credits Fulfill compensatory mitigation requirements Mitigation is often in the ground in advance of the Project Impacts, which can lower mitigation ratios Liability for compensatory mitigation success transfers from permit applicant to mitigation provider

In-lieu Fee Program Credits Fulfill compensatory mitigation requirements Program agreement is in place and agency approved prior to project, which can allow for lower mitigation ratios Liability for compensatory mitigation success transfers from permit applicant to mitigation provider

Mitigation Credits

Other Programmatic Options HCPs – Habitat Conservation Plans (FESA) NCCPs – Natural Community Conservation Plans (CDFG Code §2800) SAMPs – Special Area Management Plans (CWA)

Advance Mitigation Options? Does your area have an implemented advance mitigation option?

Permittee Responsible Mitigation

Types of Mitigation Wetland Riparian Stream Special status species Rare plants Rare or special status vegetation communities Preservation Restoration Enhancement Creation

Caltrans is responsible in Perpetuity (this is a very long time) Mitigation plan Find land Restoration, enhancement, creation/establishment Maintenance and Management Activities Monitoring Who is going to manage the land? Funding Endowments Programming

Land and Protections What will you do on the land? Restoration/rehabilitation Creation/establishment Preservation Success Criteria and monitoring Management- prior to and after meeting success criteria What? Who? Funding- Work with your PM and PDT

Wetland Creation

Riparian Enhancement

The Mitigation Plan Also Known As: Habitat Mitigation and Monitoring Plan (HMMP), Habitat Development Plan (HDP), etc.

What Should a Mitigation Plan Include? Objective(s) Site selection information (suitability analysis) Site protection instrument to be used (Conservation Easement) Baseline information (impact site and mitigation project site) How the project will mitigate for lost functions and values Work plan (restoration specifications and work descriptions)

What Should a Mitigation Plan Include? Maintenance plan (ensuring continued viability) Performance standards (ecologically-based criteria for replacing lost functions and values) Monitoring requirements (Interim and long-term) Long-term management plan (post-restoration management) Adaptive management plan (addresses unforeseen changes) Financial assurances (funding commitment, long-term funding)

Additional Species Considerations Applicable for FESA/CESA impacts regulated by USFWS CDFW NOAA Fisheries Species and/or appropriate habitat must be found on the site in sufficient density and regularity Requires a permit for sampling (NOAA, FWS and/or CDFW) Habitat is viable for sustained species utilization in existing condition

General Requirements Technical Studies – Resource specific Restoration Plan – grading, planting, etc. Management Plan – Required activities, frequency, and who will complete them. Title Assessment & Assurances – existing easements (utility, etc.) Conservation Easement – California Civil Code §815 Financial Assurances – What CAN we provide?

Technical Studies and Plans The Project Delivery Team (PDT) works collaboratively to produce the following: Biological Survey Reports Wetlands Delineation Engineering/Hydrologic Studies Phase I Environmental Assessment Cultural Survey Restoration Plan Interim/Long-term Management Plans

Purpose Of Mitigation What are the Mitigation Goals? – Must be tied to project impacts – Relation to adjacent resources (wetlands or species) What is the landscape alteration? – Enhancement, Restoration, or Creation – Proposed features fit the landscape – Viability for success Hydrology Soils

Site Selection Considerations Adjacent land uses Connection to other habitats Landscape location Watershed/regional needs Comparability to impact site

Functions and Values Analysis Base Ecological Values Base Flood Attenuation Base Water Quality Etc. Low High

Reference Sites Use Reference Sites if Possible Attainable condition Similar landscape position Access to site or data from site Use to develop performance standards Reference Standard Represents the least disturbed condition

Restoration Plan Construction Measures Construction schedule Grading Plan Planting Plan Construction Methods Adjacency to sensitive resources Construction permit requirements Construction Oversight Biology and Engineering

Permitting the Mitigation Plan MUST have CEQA and NEPA Compliance Documents Permitting-required if wetlands will be disturbed or special-status species may be present: 1) US Army Corps Permit (generally use NWP 27) a) Regional Water Quality Control Board - Requires CEQA (Cat. Ex. Or M.N.D.) b) Biological Opinion from FWS and Consistency - Determination from CDFW c) Cultural Resources Determination 2) CDFW Lake and Streambed Alteration Agreement (CEQA) 3) Flood Protection Board Permit/Review (CEQA)

Performance Standards Quantifiable and Objective Based on Mitigation Goals Reference Sites Vegetation (Flora) Wildlife (Fauna) Hydrology Soils Natural Dynamic Equilibrium

Site Management Interim Management Plan Interim Management Security Analysis and Schedule Long-Term Management Plan Endowment Fund Analysis and Schedule

Keep in Mind: You can’t plan for everything Keep the organization easy – someone else will need to understand it 50 years from now Focus on Adaptive Management Remember your Mitigation Objectives