Federal Coordination for Endangered Species Act and Essential Fish - - PDF document

Presented by Christa Ippoliti, NYSDOT Endangered Species Coordinator August 17, 2020

Federal Coordination for Endangered Species Act and Essential Fish Habitat for NYC Locally Administered Federal Aid Projects

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Federal ESA

• The U.S. Fish and Wildlife Service (USFWS) and National Marine

Fisheries Services (NMFS) are primarily responsible for overseeing the Endangered Species Act (ESA).

• Federal agencies are required to consult with the USFWS and/or

NMFS to ensure that any actions authorized, funded, or carried

• ut are not likely to jeopardize species or destroy or adversely

modify critical habitat.

• USFWS oversees non‐marine species, NMFS oversees marine and

anadromous species.

• Section 9 of the ESA prohibits the taking of any federal

endangered animal species by any entity, public or private, regardless of federal agency involvement.

Why do you need to Consult for Endangered Species? The U.S. Fish and Wildlife Service and National Marine Fisheries Services are primarily responsible for

• verseeing

the federal Endangered Species Act. Federal agencies have various requirements under Section 7 of the Endangered species act, namely Federal agencies are required to consult with the USFWS and NMFS to ensure that any actions authorized, funded, or carried out are not likely to jeopardize species

• r destroy or adversely modify critical habitat.

USFWS oversees non-marine species, and NMFS oversees marine and anadromous species. Section 9 of the ESA prohibits the taking of any federal endangered animal species by any entity, public or private, regardless of federal agency involvement. So this means even if there is no federal money

• r permitting and FHWA and/or US Army Corp are not involved, there

can not be a ‘taking’ of a federally protected species without approval from USFWS and/or NMFS. In this instance coordination would occur with the project sponsor and USFWS and/or NMFS directly.

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New York State ESA

• The Environmental Conservation Law Article 11 Title 5, and its

implementing regulations in 6 NYCRR Part 182, protects endangered and threatened species.

• The Environmental Conservation Law Article 9 Title 15, and its

implementing regulations in 6 NYCRR Part 193, protects species of plants that are listed as endangered, threatened, rare, or exploitably vulnerable.

• The Environmental Conservation Law Article 11 Title 1, all “shellfish”

found in New York State are protected under this law.

New York state also has laws protecting listed species. The Environmental Conservation Law, Article 11 Title 5, and its implementing regulations, protects endangered and threatened species of fish, shellfish, crustacea or wildlife by prohibiting the taking, importation, transportation, possession or sale of any such species. The Environmental Conservation Law, Article 9 Title 15, and its implementing regulations, protects species of plants that are listed as endangered, threatened, rare, or vulnerable by prohibiting any person from collecting or destroying any such species without the consent of the

• landowner. You should be aware that State listed plants are not afforded

the same level of protection as state listed animals. In accordance with ECL Article 9 Title 15, protected plants may be destroyed with permission

• f the landowner, thus agency coordination is not necessary. However, It

is NYSDOT’s view that as a best management practice, when protected plants are identified during screening, a concerted effort should be made to avoid and minimize impacts to them. Also, under the Environmental Conservation Law Article 11 Title 1, all “shellfish” found in New York State are protected under this law. In Region 11 currently the only S1/S2 mussel waterbody is the Bronx River. So if you have a project that will impact this waterbody the sponsor will be required to coordinate with DEC for potential impacts to mussels.

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Other Regulations

• The

federal Magnuson‐Stevens Fishery Conservation and Management Act Section 305(b)(2) protects Essential Fish Habitat (EFH). Coordination with NMFS required.

• The federal Migratory Bird Treaty Act protects birds that

migrate across international borders.

• The federal Bald & Golden Eagle Protection Act (BGEPA)

provides for the protection of bald eagles & golden eagles.

Cornell seagrass restoration project Osprey nesting on bridge Did you know bald eagles could swim?

Other regulations protecting listed species included: The federal Magnuson Stevens Fishery Conservation and Management Act which protects Essential Fish Habitat. So if you have a project that impacts EFH, coordination with NMFS will required. We will discuss this in more detail later in the presentation. The federal Migratory Bird Treaty Act protects birds that migrate across international borders. Under the Migratory Bird Treaty Act, it is unlawful to intentionally or unintentionally take, capture or kill any migratory bird unless a Migratory Bird Permit is first obtained from the U.S. Fish and Wildlife Service. Each violation of the Migratory Bird Treaty Act can result in a fine of $15,000, imprisonment for six months, or both. Migratory bird species that are protected under the Migratory Bird Treaty Act include all waterfowl, herons, eagles, hawks, falcons, owls & songbirds. Migratory bird species that are not protected under the Migratory Bird Treaty Act are domestic pigeons, English sparrows, European starlings & monk parakeets. Although these species are not protected, they should be treated in a humane manner. If the nests are in the way of an inspection or for construction, contractors should relocate active nests of unprotected species into nearby trees or to transfer the nests to a wildlife rehabilitator. There is also the federal Bald and Golden Eagle Protection Act, which provides for the protection of the bald and golden eagles.

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ALL FEDERALLY LISTED SPECIES ARE ALSO LISTED BY NYS. BUT NOT ALL NYS LISTED SPECIES ARE LISTED BY THE FEDS. If there are impacts to a federally listed species coordination with NYSDEC is also required for that species. If there are impacts to a state only listed species coordination with FHWA/USFWS/NMFS is NOT required.

State and Federally Listed Species

There are state listed species and there are federally listed species and this is something that seems to confuse people so I wanted to go over this again: ALL FEDERALLY LISTED SPECIES ARE ALSO LISTED BY NYS. BUT NOT ALL NYS LISTED SPECIES ARE LISTED BY THE FEDS. So if the USFWS or NMFS lists a species as threatened or endangered, DEC automatically lists that species as a NYS Protected species (although the species may not have the same listing status in New York State as it does by the feds). Therefore, if your project proposes impacts to a federally listed species, coordination is required with the federal lead and USFWS and/or NMFS and coordination is also required with DEC for that species because it is also state listed. If there are impacts to a state only listed species, coordination with DEC is required but coordination with FHWA and/or USFWS and NMFS is NOT

• required. Therefore there should be no mention of a state only listed species in

the FHWA coordination letter. Impacts to federal and state only listed species should be discussed in the design report. Effect determinations for federally listed species are stated as “No effect” or “may effect, not likely to adversely affect”. For NYS only listed species the effect determination are stated as “Take not likely” or “take likely”.

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Federal Animal Species in NY (USFWS)

• Indiana bat
• Northern long‐eared bat
• Karner blue butterfly
• Dwarf wedgemussel
• Rayed bean
• Clubshell
• Chittenango ovate amber snail
• Bog turtle
• Eastern Massasauga
• Piping plover
• Roseate tern
• Red knot

Region 11 IPaC

In New York State we have several federal and state listed species managed by USFWS: We have 2 bat species, the Karner blue butterfly, 4 mollusk species, the Bog turtle, the Eastern Massasauga, and in Region 11 we have the Piping plover, Roseate tern, and the Red knot that come up on most projects in IPaC. The feds are also looking to list the Monarch butterfly, little brown bat, tri colored bat, and some bee species soon.

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Federal Plant Species in NY (USFWS)

• Northern wild monkshood
• American hart’s‐tongue fern
• Northeastern bulrush
• Sandplain gerardia
• Houghton’s goldenrod
• Small whorled pogonia
• Leedy’s rosewort
• Seabeach amaranth

Region 11 IPaC

The USFWS also manages impacts to the following federal and state listed plant species: Northern wild monkshood American hart’s-tongue fern Northeastern bulrush Sandplain gerardia Houghton’s goldenrod Small whorled pogonia Leedy’s rosewort And Seabeach amaranth For federally listed plants you can not Remove or maliciously damage them on lands with Federal jurisdiction, or in violation

• f state trespass law. But as with state only listed plant species,

federally listed plant species can be removed with the approval

• f the land owner. But coordination with federal agencies is

required first.

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Federal Marine Species in NY (NMFS)

• Atlantic sturgeon
• Shortnose sturgeon
• Green sea turtle
• Hawksbill sea turtle
• Kemp’s ridley sea turtle
• Leatherback sea turtle
• Loggerhead sea turtle
• Whales‐ humpback, right, fin

All in Region 11 per NMFS ESA Mapper

In New York State we have the following federal and state listed species managed by NMFS Atlantic sturgeon Shortnose sturgeon Green sea turtle Hawksbill sea turtle Kemp’s ridley sea turtle Leatherback sea turtle Loggerhead sea turtle And the humpback, right, and finback whales. Projects with in-water work in regions 1, 8, 10 and 11 are required to screen for potential impacts to these marine species.

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State Only Listed Species (NYSDEC) (NYC)

• Peregrine Falcon
• Northern Harrier
• Short‐eared Owl
• Common Tern
• Least Tern
• Least Bittern
• Bald Eagle (federally

protected by BGEPA)

Sponsor com Sponsor complete tes State s State ESA ESA coordi coordination, NYSD nation, NYSDOT ensu OT ensure res s it has been com has been completed ted

In New York City there are known occurrences of state only listed

• species. These known occurrences include:

Peregrine Falcon Northern Harrier Short-eared Owl Common Tern Least Tern Least Bittern And the Bald Eagle. The bald eagle is not listed on the federal endangered species act list, but it is still federally protected under the Bald and Golden Eagle Protection act, the migratory bird act and the lacey act. Also, the Bald Eagle does not come up on the IPaC official species list, but it will come up on the DEC screening. That is why I’m including it with the State Only Species instead of the Federal species. If there is potential for a take of a state only listed species, the Sponsor is responsible for completing the State ESA coordination with DEC. NYSDOT staff should ensures it has been completed but the coordination letters do not need to go to NYSDOT for review and submittal.

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June 2020 FHWA Process

• FHWA recently updated

their ESA Guidance.

• June

2020 procedures were available for use as

• f June 15th.
• All

consultations that begin after August 1 must follow June 2020 procedures.

So FHWA recently updated their ESA Guidance. The June 2020 updated procedures were available for use as of June 15th. All consultations that begin after August 1 must follow these updated June 2020 procedures.

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June 2020 FHWA Process

Step 1: Are there ESA species, Critical Habitat, or Essential Fish Habitat mapped for the Action Area? Step 1a: USFWS Step 1b: NMFS Step 2a: Activity‐Based “No Effect” Step 2b: Species‐Specific Packages Step 3: Documentation Attachments: USFWS & NMFS Transmittal Forms Activity‐Based No Effect List NMFS ESA PA Verification Form NMFS EFH PA Verification Form

TEM Chapter 4.4.9.3 Appendix G (FHWA Guidance)

https://www.dot.ny.gov/divisions/engineering/environmental‐analysis/manuals‐and‐guidance/epm

The FHWA Guidance (which you all have access to and should have all read and understand) has step by step instructions on how to complete the required coordination. Step 1: discusses the steps for screening to determine if there are there ESA species, Critical Habitat, or Essential Fish Habitat mapped for the Action Area? Step 1a: specifically discusses the USFWS IPaC mapping requirements and Step 1b: discusses the NMFS ESA and EFH mappers. Step 2a: goes through the Activity-Based “No Effect” determination for projects, so you can see if your project is eligible for a “no effect – activity based” determination. Step 2b: goes through the Species-Specific Packages and Step 3: discusses the Documentation that is required for an ESA packet. The FHWA guidance also includes separate USFWS & NMFS Transmittal sheets (which is new as part of the latest updates). There is an Activity- Based No Effect List, the NMFS ESA Programmatic agreement Verification Form and the NMFS EFH Programmatic agreement Verification Form. ESB has made all the forms that are included in the FHWA Guidance, into fillable PDFs and there is a link on the TEM page to those forms. You should all have access to the TEM guidance and at the bottom of the slide there is a link to where it all resides.

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Screen for the Entire Action Area

Action area refers to the area directly or indirectly affected by the proposed action. This area will usually be larger than the project footprint. 1.Ground disturbance 2.Changes in water quality & quantity (both surface and underground water) 3.Air quality impacts 4.Lighting effects 5.Noise disturbance

Project Footprint

Project Action Area

Lighting Noise Water Quality and Quantity Staging Area Ground Disturbance

So the first thing you need to do is determine your action area. The Action area refers to the area directly or indirectly affected by the proposed action. This area will usually be larger than the project’s actual physical footprint. When looking at the project’s action area you need to take into account staging areas, Ground disturbance, Changes in water quality & quantity (both surface and underground water), Air quality impacts, Lighting effects, and Noise disturbance. If there are off site staging areas where there will be permanent or temporary impacts, potential impacts to listed species needs to be assessed for these areas. if you have a bridge project and there will be work in the water, the project’s action area would extend downstream and upstream from the actual site, therefore on IPaC, the environmental resources mapper, and the NMFS mappers you should look downstream and upstream for listed species. You also have to be cognizant of other impacts from the project such as lighting, noise and air pollution. So all these things need to be taking into account when determining the project’s action area. Also, we understand that at the time you do your initial screening all details of the project may not be fully known. The initial Action Area you choose for screening purposes may change throughout preliminary design. Remember to update your action area (and rescreen if necessary) when there are changes in the project limits

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• r activities.

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FHWA Step 1: Screening/Mapping

• Step 1a: Determine if there are USFWS‐listed

species mapped for the Action Area.

– NYNHP (for those with access / NYSDOT) – NYSDEC Environmental Resources Mapper (for those w/o access / locals / consultants) – IPaC (USFWS)

• Step 1b: Determine if there are NMFS‐listed

species mapped for the Action Area.

– NMFS ESA Mapper – NMFS EFH Mapper

so after you have determined the project's action area you need to determine if there are any species that have the potential or are known to occur within the project’s action area. The NY Natural heritage program database should be reviewed for known

• ccurrences of listed species, by those with access. If you do not

have access to the heritage data you need to review the DEC Environmental Resources Mapper for known occurrences. Also the USFWS IPaC database needs to be reviewed for potential

• ccurrences of listed species.

If you are in regions 1, 8, 10 or 11 and have in-water work (or cannot yet confirm that no in-water work will be needed) you will also need to review the NMFS ESA Mapper and the NMFS EFH Mapper for marine species. The screening tools that are in red text have to be used for all projects in NYC. Not one, not two, but all of the screening tools have to be used to generate a list of species that are known to or have the potential to occur within the project’s action area. I will discuss how to use all of these screening tools later in the presentation.

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Step 2a: Activity‐ Based No Effect Is your project on this list? And does it meet ALL the conditions?

Now that you have determined where your action area is, and the list of species that are known to or have the potential to occur within your project’s action area you need to see if your project qualifies for a “no effect Activity based” determination. Page 55 of FHWA’s guidance includes a list of activities that are considered “activity based” and page 56 of the guidance includes the conditions that need to be met to qualify for an “no effect activity based” determination. If you project involves tree cutting, it will not qualify for an activity based no effect. If you project involves any kind of in-water work to a marine environment, stream, river, or wetland, it will not qualify for an activity based no effect. If you are working outside of the operational right-of-way your project will not qualify for an activity based no effect. So for instance if you are acquiring easements or going beyond the limits that are actively maintained for the roadway (even if you own it) – you are outside the operational ROW. If your project is on this list and meets all the conditions for an ‘no effect activity based’ determination then a habitat assessment for listed species does not need to be completed. There are several more effect determinations that a project can qualify for, and I will discuss those later in the presentation.

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Contents: Step 2b: Species‐ Specific Packages

• Bats
• Bog Turtle
• Mollusks
• Karner Blue Butterfly
• Sturgeon
• Sea Turtles
• Atlantic Large Whales
• Essential Fish Habitat

No species specific package?? Then use the general process

• utlined in

TEM Chapter 4.4.9.3

Found in Region 11

If your project does not qualify for a ‘no effect activity based’ determination then you will have to complete a habitat assessment for all of the species that come up on IPaC, the DEC environmental resources mapper, and the NMFS

• mappers. If there is no species specific package in FHWA’s

guidance for the species listed on IPaC’s “official species list” then you will need to use the general 7 step process outlined in NYSDOT’s endangered and threatened species guidance, found in TEM chapter 4.4.9.3. For Region 11 projects with in-water work there are species specific packages for sturgeons, sea turtles, Atlantic large whales, and essential fish habitat that will guide you through the coordination process needed.

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NYSDEC Environmental Resources Mapper (ERM)

https://gisservices.dec.ny.gov/gis/erm/

So lets go over how to screen for species that could be impacted by a project. The first step for those without access to the NY Natural heritage program data, is to review the DEC’s environmental resources mapper. The DEC’s environmental resources mapper is a database that is

• wned and maintained by DEC, not NYSDOT.

So when you open the mapper you would click on the “layers and Legend” button and scroll down to the bottom of the list. There you will see a layer called ‘rare plants or animals’. If you turn this layer on, polygons will appear on the map (once you are zoomed in close enough to the project’s action area). If any part of your project’s action area is within one of these polygons then you will need to contact the Natural heritage program to see what species are known to occur within the project’s action area. If the project’s action area is outside of these polygons then there is no need to contact the Natural heritage

• program. No additional buffers need to be added to these polygons. DEC has already buffered the

known occurrences. To print or download a map from the environmental resources mapper to be used in coordination letters and the design report, you would click on the “tools” button and from there you are given the option to print a map with whatever layers you have turned on. Make sure to add the Project PIN and Title to the map before you print. Reviewing the DEC’s environmental resources mapper has a two-fold purpose, it shows the state only listed species that as we discussed prior (for which the sponsor is responsible for determining if a Take will occur and to then coordinate with DEC). And it also indicates known occurrences of Federally listed species as well. Because of this the environmental resources mapper review is part of FHWA ESA process. Also for the write up in the coordination letters and the design report it should be noted that there is a difference between the data from the environmental resources mapper or heritage and IPaC. The data from environmental resources mapper or heritage is considered ‘known occurrences’ whereas the data from IPaC shows the “potential” for federally listed species to occur in project’s action area.

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https://ecos.fws.gov/ipac/

USFWS’s IPaC

Flounder in SAV

If the IPaC Official Species List shows potential for federally listed species in project’s action area, an Effect Determination must be made for each species. Follow instructions on the FHWA Transmittal Sheet(s)

The USFWS has a database called “information for planning and consultation” also known as IPaC and the link to this database is at the bottom of the screen. Once in IPaC you need to click on “get started” then zoom in to your project’s action area. You can use the drawing tools to delineate your project’s action area or you can upload a shape file. Once your action area is delineated you then click “continue”. You will then get a list of species that have the potential to occur within the project’s action area. On the right hand side of that page you click on “define the project”. That will guide you through a short process until you get to a page where you can click on “submit official species list request”. You click that button and get a screen that tells you to wait for a bit while they process the Official species list. The official species list will not be mailed, it will take a minute or so to process, then the webpage that you are on will refresh and the official species list will be available for downloading and printing. If IPaC shows that a federally listed species has the potential to

• ccur within the project’s action area, an effect determination needs

to be made for each species on that IPaC official species list.

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NMFS ESA and EFH

Regions 1, 8, 10, and 11

Must document having screened for:

1.ESA ‐ Marine species managed by NMFS 2.EFH ‐ Essential Fish Habitat‐ all species

Projects with no in‐water work can skip this step & are required to check “ESA/EFH Does Not Apply” on the NMFS Transmittal Sheet Flounder in SAV

NMFS screening is also required to be completed for projects in Regions 1, 8, 10 & 11 that have in-water work. If your project does not require in-water work, you can skip this step. You are still required to check ESA/EFH Does Not Apply (no in-water work) on the NMFS Transmittal Sheet and submit that to NYSDOT as part of the ESA package. Projects involving in-water work which means work in (tidally influenced wetlands, stream, rivers, estuaries and other marine environments) in NYSDOT Regions 1, 8, 10, and 11 are required to consider the presence of BOTH ESA-listed species and Essential Fish Habitat, both of which are under the jurisdiction of NMFS. These are two separate resource areas with two separate mapping programs. For ESA, you would use the NMFS ESA Mapper Tool to determine whether a project involving in-water work will affect sturgeon species and/or it’s critical habitat, sea turtle species, and Atlantic Large Whale species. Critical Habitat has been mapped for Atlantic Sturgeon and will also be shown on the ESA Mapper, if present. For each of these federal species, an effect determination is required to be made because they have potential to occur within the project’s Action Area. For EFH, use the NMFS EFH Mapper to determine if EFH resources are located within the project’s Action Area.

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NMFS Programmatic Agreements

FHWA has two Programmatic Agreements with the National Marine Fisheries Service, GARFO (Greater Atlantic Regional Field Office):

• 1. ESA ‐ Marine species managed by NMFS
• 2. EFH ‐ Essential Fish Habitat‐ all species

If impacts to ESA or EFH managed by NMFS see if PA applies by completing the PA Verification Form(s).

Regions 1, 8, 10, and 11

Just so you understand, NMFS Coordination was always required for certain species but now FHWA has the process detailed in their Guidance on how to complete this coordination. If your project involves these types of in-water work in tidally influenced wetlands, stream, rivers, estuaries and

• ther

marine environments, Coordination with NMFS is most likely required.

• Pile driving
• Drilled shafts
• Placement of scour protection
• Dredging
• Spudding barges
• Installation of cofferdams or sheet piling
• Modification of the benthic habitat
• Use of river water for cooling concrete
• Vessel operations greater than 6 knots
• Or Operation of construction equipment from barges

FHWA has two Programmatic Agreements with NMFS: One is for ESA Marine species managed by NMFS and the second is for Essential Fish Habitat which is conservation for habitat “essential for commercially important marine species”. If your project has potential to impact ESA or EFH managed by NMFS you need to check and see if the Programmatic Agreements apply by completing the PA Verification Form(s).

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N M F S E S A M A P P E R

https://noaa.maps.arcgis.com/apps/webappviewer/index.html?id=1bc332edc5204e03b250ac11f9914a27

As I just stated there are 2 NMFS mappers that need to be checked for projects with in-water work in regions 1, 8, 10 and 11 and I’m going to go over how to compete these required screenings. The link for the NMFS mapper is on the bottom of this slide and it is in the FHWA Guidance. This slide depicts a screen shot of the NMFS ESA mapper zoomed into the NYC area. So how did I get there? Upon opening the NMFS ESA Mapper Tool, you will see a transparent red “Section 7 Study Area” polygon indicating the general extent of available data within the

• Mapper. Zoom into an extent where the individual data layers become

visible in order to analyze your action area. Then, left-click on your action area within the shaded “Section 7 Consultation Area” and A pop-up will appear listing the species details for the selected area. If there are multiple overlapping features, a pop-up will be generated for each area. The header on the pop-up (which I’ve circled in red) indicates how many pop-ups were generated (so for this area there are 7 species or critical habitats mapped). Be sure to use the arrows

• n the top right corner of the pop-up to scroll through all pages of the

pop-up for information on each listed species found in the action area. Now on the upper part of the screen shot there’s another red circle. This is for a very helpful tool that allows you to draw your project’s action area.

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NMFS ESA Mapper

• 1. Click Here to Draw

Action Area

• 2. Click Here to Print or

Download Copy of Report

• 3. What Report Should

Look Like

So if you click on that button, a box will pop up that allows you to draw an outline of the project’s action area. You can also import a shape file of the action area or input coordinates for the project's action area. After you have the action area delineated you click on the button “get details”. Then another pop-up will appear, that lists all of the species and critical habitat in the action area. This pop-up also includes the option to download or print out the NMFS ESA report. The local project sponsor needs this report as part of the ESA packet and it needs to be included as part of the appendix for the Design Report.

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Applicability depends on 32 Project Design Criteria. Examples include:

• Max vessel speed,
• Maintain distance from

whales,

• Screened water intakes,
• And turbidity controls.

NMFS ESA Verification Form

After you complete the NMFS ESA screening and determine what species could potentially occur within the project’s action area, you need to perform a habitat assessment so you are able to complete the NMFS “ESA Programmatic Agreement Verification Form”. 32 different ‘Project Design Criteria’ need to be met for your project to qualify to use of the NMFS ESA Programmatic Agreement. Some of the Project Design Criteria that need to be met include:

• Max vessel speed,
• Maintain distance from whales,
• Screened water intakes,
• And turbidity controls.

There are also time of year restrictions that need to be observed.

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A hydroacoustics analysis is required if there is pile driving of any kind.

NMFS ESA Verification Form

If your project requires pile driving of any kind, a hydro-acoustic analysis will required. The NMFS form includes links to the analysis tool [PDC #13 in Attachment 2: National Marine Fisheries Service ESA Verification Form of the June 2020 FHWA NY Division ESA & EFH compliance procedures (page 62 of the pdf)] The NMFS “ESA Programmatic Agreement Verification Form” is 9 pages long and in order to complete it the sponsor will need to know the specifics of what in-water work will encompass and the time of year in-water work is proposed. The sponsor will also need a detailed habitat assessment to complete the PA. If the sponsor does not have staff that is qualified to complete this type of analysis they will have to hire an Environmental Consulting firm that has staff who is qualified. So completing this Verification Form is not something that can be thrown together quickly and sent to FHWA and NMFS. So if you have a project that requires in-water work you should adjust your project’s schedule to include the time it will take to complete the necessary coordination. Start early, don’t wait until you are almost done with design and expect to throw together something and get it approved quickly.

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NYSDOT Regions 1, 8, 10, and 11 are required to use the NOAA/NMFS EFH Mapper to determine if EFH resources are located within the project’s action area. EFH is defined to include "those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity".

Ocean Quahog

(is the longest living non‐ colonial metazoan species in the world, one individual found was estimated to be 507 years old!!)

Atlantic Mackerel Atlantic Sea Scallop

What is EFH?

Now in addition to NMFS ESA coordination, NYSDOT Regions 1, 8, 10, and 11 are also required to use the NMFS EFH Mapper to determine if Essential Fish Habitat resources are located within the project’s action area. EFH is defined to include "those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity". So EFH is not protection for listed species, but it is protection of the habitat that is used by commercially important marine species.

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NMFS EFH Mapper

https://www.habitat.noaa.gov/protection/efh/efhmapper/index.html

The NMFS EFH mapper web address is at the bottom of this slide, and it’s also in FHWA”s Guidance. When you open the EFH mapper you will need to select the region (Greater Atlantic) from the drop-down menu on the left, and zoom into the project location. You then Click on “Data Query Tool” (which I’ve circled in red on this screen shot) at the top left of the page, then click on “Activate Location Query”, and double click on your project location. The left side

• f the screen will populate with the list of EFH-protected fish

species and the life-stage found at the project action area. At the top of that page you have the option to print out the list of EFH species. You need this print out for FHWA and NMFS coordination and as part of the appendix for the design report.

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Does your project involve these types of in‐water work in marine, estuaries, and/or tidal influenced waters:

• Pile driving
• Drilled shafts
• Placement of scour protection
• Dredging
• Spudding barges
• Installation of cofferdams or sheet piling
• Modification of the benthic habitat
• Use of river water for cooling concrete
• Vessel operations >6 knots
• Operation of construction equipment from barges

Coordination with NMFS is most likely required

In‐Water Work

Just like NMFS ESA coordination if your project involves these types of in-water work in tidally influenced wetlands, stream, rivers, estuaries and other marine environments, Coordination with NMFS is most likely required.

• Pile driving
• Drilled shafts
• Placement of scour protection
• Dredging
• Spudding barges
• Installation of cofferdams or sheet piling
• Modification of the benthic habitat
• Use of river water for cooling concrete
• Vessel operations more than 6 knots
• And/or Operation of construction equipment from barges

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EFH PA Verification Form

Applicability depends on 41 Conservation Recommendations. Examples are very similar to the ESA list, however there are more details and more time of year restrictions. There is space to explain why some items can’t be met.

The NMFS “EFH Programmatic agreement verification form” is 15 pages long, again it’s not something that you can throw together at the last minute. A habitat assessment will be

• required. The PA outlines 41 Conservation Recommendations.

The Conservation Recommendation examples are very similar to the NMFS ESA list, however there are more details and more time of year restrictions. There is also a space next to each Conservation Recommendation where you can explain why some items can’t be met.

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EFH PA Verification Form

Potential stressors are noted at the top, and Conservation Recommendations pertain to each stressor. If there isn’t enough room for justification add additional sheets.

Potential stressors are noted at the top of the NMFS “EFH Programmatic agreement verification form”, and there are Conservation Recommendations that apply to each stressor. If there isn’t enough room for you to justify why a conservation recommendation can’t be met, plan to attach additional sheets with the required information.

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• EFH Does Not Apply: for projects w/ no

mapped EFH resources within the Project Area or w/ no work in the water.

• No Effect‐Activity Based: for projects

listed on the Activity‐Based No Effect list.

• EFH Programmatic Agreement Applies:

for projects that meet the descriptions w/in the PA, & meet all the BMPs.

• EFH Programmatic Agreement May Apply: for projects that meet the

descriptions within the PA, but do not meet all of the BMPs.

• Individual Consultation: Projects that do not fall within the EFH PA must

follow Individual Consultation.

For “EFH Does Not Apply” & “No Effect‐Activity Based” no habitat assessment

• needed. All others require some type of habitat assessment for each EFH species.

EFH Effect Types

Longfin Inshore Squid

As with ESA species, there are effect determinations for EFH

• species. These effect determinations included:

EFH Does Not Apply: for projects with no mapped EFH resources within the Project’s action Area or for projects with no in-water work. No Effect, Activity Based: for projects listed on the Activity-Based No Effect list. Though very few if any projects with in-water work will qualify for an activity based no effect determination. EFH Programmatic Agreement Applies: for projects that meet the descriptions within the PA, and meet all the BMP/conservation recommendations. EFH Programmatic Agreement May Apply: is for projects that meet the descriptions within the PA, but do not meet all of the BMPs. Individual Consultation: is for projects that do not fall within the EFH PA, therefore Individual Consultation is required. For “EFH Does Not Apply” & “No Effect-Activity Based” no habitat assessment is needed. All others require some type of habitat assessment for each EFH species.

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If project doesn’t qualify for PA ‐ Individual Consultation is required Some Examples:

• Temporary structures, construction access, & dewatering activities

proposed to be in place for ≥2 years

• Construction of new or expansion of existing boating or ferry terminals
• New fill/stabilization placed below MLW in excess of 200 linear feet
• Construction of new bridges or culverts, where no crossing existed

previously

• New or improvement dredging
• Slip‐lining or invert lining existing culverts
• Stream channelization
• Any new or replacement causeways

EFH Individual Consultation

If your project doesn’t qualify for the PA, then Individual Consultation with FHWA and NMFS will be required. Some examples of projects that require individual consultation include: Stream channelization, Temporary structures, construction access, & dewatering activities proposed to be in place for 2 or more years Slip-lining or invert lining of existing culverts Construction of new or expansion of existing boating or ferry terminals New or improvement dredging New fill or stabilization placed below the Mean Low Water in excess of 200 linear feet Construction of new bridges or culverts, where no crossing existed previously And Any new or replacement causeways Now all the information I just went over on how to screen for ESA or EFH species is in FHWA’s Guidance, which you should have all read, and can now refer to in the future if you have questions on how to complete the necessary screening.

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For “ESA Does Not Apply” & “No Effect‐Activity Based” no habitat assessment needed!! All others require some type of habitat assessment for each ESA species.

Habitat Assessment

Got a list of species within the project’s action area…

now what?? now what??

Complete a habitat assessment and make effect determination(s) for all species

Where do protected species live?

Trees ees

BRIDGES Buildings Buildings Wetlands

Riv Rivers

Strea Streams Grass Grassy Fields Fields

Parks Parks

All Marine Environments and All Marine Environments and Estuaries Estuaries

Beaches Rocky Outcrops/Shores

Ok so now you have a list of species that are known to or have the potential to occur within the project’s action area. So now what do you do? You are going to have to complete a habitat assessment and make an effect determination for all species that come up on IPaC, the DEC Environmental Resources Mapper, and the NMFS ESA and EFH Mappers. If there are no federal species that come up, your effect determination would be “ESA Does Not Apply” and no habitat assessment will be required. If your ENTIRE project qualifies for a “no effect activity based” determination then a habitat assessment does not need to be completed. There has been some questions on where protected species live? They live in trees, sandy beaches, rocky outcrops and rocky shorelines, bridges, buildings, rivers, grassy fields, parks, wetlands, streams, and all marine environments and estuaries. So if you have a project that is impacting any of those habitats and your effect determination is anything other than “ESA does not apply” or “no effect activity based” then a habitat assessment will be required for potential impacts to listed species. Also something you need to think about when you are doing a habitat assessment is the time of year the species may be utilizing the habitat. Depending on the species that may be present, and what they are using the area for, time of year restrictions may be needed. For example the Hudson river is a bald eagle winter foraging area. If there will be significant noise, lighting or air pollution during the winter, this may affect wintering birds and their feeding, so time of year restrictions may be required for winter. But if work is in the summer and it isn’t near an eagle nest, the project would be less likely to disturb the eagle. So that is something you need to keep in mine when assessing the habitat, and the potential impacts associated with the project.

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ESA Packet Documentation

ESA Packet Documentation/Instructions are on Transmittal Form

The updated FHWA Guidance now has 2 separate transmittal forms,

• ne for US fish and wildlife service coordination and one for National

marine fisheries service coordination. This is USFWS transmittal form. As you can see, the left side of the transmittal form lists all the USFWS “species specific packages” that are included in the FHWA guidance, and there is also a box that you can use to list “other” species that come up on IPaC that do not have a “species specific package”. At the top of the form are the federal effect determinations that are applicable for each species. If you follow that column down you will see that FHWA discusses the steps that need to be followed for submission. It also discusses what needs to be included in the ESA packet. Now for local projects even if it says “no submittal to FHWA is required”, you still need to complete the necessary screening and submit the ESA packet to your NYSDOT regional local project liaison for review. All federal coordination for listed species has to be submitted to NYSDOT, who then sends it to FHWA. The local project sponsor and their consultant can not coordination directly with FHWA or USFWS

• r NMFS for listed species.

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ESA Packet Documentation/Instructions are on Transmittal Form

ESA/EFH Packet Documentation

This is the NMFS transmittal form. As you can see the left side of the transmittal form lists all the NMFS ESA species specific packets and EFH package that are included in the FHWA guidance. At the top of the form are the federal effect determinations that are applicable for each species. If you follow that column down you will see that the FHWA lists what process needs to be followed for

• submission. It also discusses what needs to be included in the ESA or EFH

packet. If nothing comes up on the NMFS EFH or ESA mappers or if there’s no in-water work, then you would check one of the two options under EFH/ESA does not apply, and there is no submission to FHWA required. Local project sponsors still need to send the NMFS transmittal sheet to NYSDOT so regional staff can ensure the process is being completed properly. If there is no in-water work you do not need to include the NMFS mapper print

• uts. If there is in-water work but there are no EFH or ESA species on the

mappers, the mapper print outs need to be included in the ESA packet sent to

• NYSDOT. Again it’s all spelled out on the FHWA transmittal sheets

If the project qualifies for the “no effect activity based” determination, then you would check that box and follow the instructions under that column. If there is potential to impact NMFS EFH or ESA resources then the PA Verification forms will need to be filled out, and the submittal process for both is

• utlined on the transmittal sheets.

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Local Project Sponsor Prepares an ESA Packet per Transmittal Form Instructions:

• Draft FHWA Cover Letter (REUS transfer to NYSDOT letterhead & address to FHWA)
• IPaC Official Species List (dated within 90 days of request)
• NMFS ESA/EFH Mapper Map(s) (dated within 90 days of request) (**if needed)
• NMFS ESA/EFH PA Verification Form(s) (**if needed)
• ERM/NYNHP letter (dated within 90 days of request)
• BE/BA (**if needed)
• Detailed Project Description
• FHWA’s Transmittal Sheet(s)

** refer to transmittal sheet(s) and FHWA’s Guidance to see what is needed for each ESA Packet

ESA Packet to NYSDOT

ESA PACKET So now that you have completed the required screening for protected species that are known to or have the potential to occur within your project’s action area, and you have completed habitat assessments (if needed) for each species, and you have effect determinations for each species, it’s time for the local project sponsor to put together the ESA packet that will be sent to NYSDOT. What is included in the ESA packet depends on what the effect determination is for each

• species. There might be a “no effect – no suitable habitat” determination for one species,

and a “may affect – not likely to adversely affect” for another species, so the documentation could vary a little, but the transmittal sheets and the FHWA Guidance will tell you what needs to be completed for each species based on the effect determination. Based on the effect determinations, an ESA packet from the local sponsor could include: A draft FHWA Cover Letter (that the regional environmental unit supervisor is supposed to transfer to NYSDOT letterhead and address it to the FHWA Area engineer) The IPaC Official Species List The NMFS ESA and EFH Mapper Maps (**if needed) The NMFS ESA and EFH Programmatic Agreement Verification Forms (**if needed) The DEC Environmental Resources Mapper and/or heritage letter A biological evaluation or biological assessment (**if needed) All submission must include a detailed Project Description And the FHWA Transmittal Sheets For the IPaC official species list, the NMFS ESA and EFH mappers, and the environmental resources mapper, all of them should be dated within 90 days of FHWA submittal.

USFWS/NMFS “ESA/EFH Does Not Apply”:

(habitat assessment not needed)

RLO ESA Packet NYSDOT RLPL RLPL ensures ESA packet is complete ESA Packet REUS REUS reviews ESA packet to ensure effect determination is accurate. REUS Edits/Agreement NYSDOT RLPL Edits/Agreement RLO

ESA Packet: IPaC OSL, NMFS Mapper(s), ERM, & Trans Form(s)

All materials are included in DAD appendix and there is no submittal to FHWA required. RLPL should confirm that the FEAW is marked “C”.

ESA Packet to NYSDOT

For your project to be eligible for an “ESA or EFH does not apply” effect determination, the IPaC official species list, the NMFS mappers, and the environmental resources mapper need to all indicate that there are no

• ccurrences of federally listed species within the project’s action area. Or for

the NMFS mappers there is an option to choose “no in-water work”. If your project qualifies for an effect determination of “ESA or EFH Does not apply” the ESA packet needs to include the IPaC Official species list, the NMFS mappers, the environmental resources mapper, and the FHWA transmittal forms. Also remember that for an “ESA or EFH Does not apply” effect determination a habitat assessment is not needed. Now that you have the ESA packet together you need to be familiar with how and where to submit it for review and approval. The sponsor should submit the ESA Packet to the NYSDOT regional local program liaison also called the

• RLPL. The RLPL ensures the ESA packet is complete then sends it to the

regional environmental unit supervisor. The REUS ensures the effect determination is accurate and all materials that are needed in the ESA packet are included. The REUS then sends any edits, comments

• r

their concurrence of completion of the ESA packet back to the RLPL who then sends that information back to the sponsor. Nothing needs to be sent to FHWA for an “ESA or EFH does not apply” effect

• determination. All the materials in the ESA packet should be included in the

design report and the RLPL should confirm that the FEAW is marked “C”.

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USFWS/NMFS “No Effect – Activity Based”:

(habitat assessment not needed)

RLO ESA Packet NYSDOT RLPL RLPL ensures ESA packet is complete ESA Packet REUS REUS reviews ESA packet to ensure all species qualify for NE‐AB. REUS Edits/Agreement NYSDOT RLPL Edits/Agreement RLO

ESA Packet: Project Description, IPaC OSL, NMFS Mapper(s), ERM, & Trans Form(s)

All materials are included in DAD appendix and there is no submittal to FHWA required. RLPL should confirm that the FEAW is marked “C”.

ESA Packet to NYSDOT

For your project to be eligible for a USFWS and/or NMFS “no effect activity based” determination, all activities need to on the “activity based” list in the FHWA guidance, and all conditions need to be met. Let me say that again, all activities that the project will undertake have to be included on the FHWA activity based list. There can’t be one or two activities on the list then a few others not on the list. So a detailed and complete project description is needed to make an appropriate effect

• determination. Also, if the project description changes after the ESA coordination is

completed and the project no longer qualifies for an “activity based no effect” determination, then coordination for impacts to listed species needs to be completed again. If your project qualifies for an effect determination of “no effect activity based” the ESA packet needs to include a detailed project description (so NYSDOT staff can ensure the entire project is eligible for an “activity based” determination), also include the IPaC Official species list, the NMFS mappers, the DEC environmental resources mapper, and the FHWA transmittal forms. Also remember that for an “no effect activity based” determination a habitat assessment is not needed. The sponsor should submit the ESA Packet to the NYSDOT RLPL. The RLPL ensures the ESA packet is complete then sends it to the REUS. The REUS needs to ensure that the ESA packet is complete and that the entire project qualifies for a “no effect activity based” determination and that all listed species will not be impacted by the project. The REUS then sends any edits, comments or their concurrence of completion of the ESA packet back to the RLPL who then sends that information back to the sponsor. Nothing needs to be sent to FHWA for a “no effect activity based” determination. All the materials in the ESA packet should be included in the design report and the RLPL should confirm that the FEAW is marked “C”.

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ESA Packet to NYSDOT

USFWS/NMFS “No Effect”:

RLO ESA Packet NYSDOT RLPL RLPL ensures ESA packet is complete ESA Packet REUS REUS reviews ESA packet to ensure effect determination is accurate. REUS ESA Packet FHWA Area Engineer

ESA Packet: FHWA Letter, IPaC OSL, NMFS Mapper(s), ERM, & Trans Form(s)

REUS should share the FHWA concurrence letter with RLPL and RLO. All materials (including FHWA’s approval letter) are included in DAD

• appendix. RLPL should confirm that the FEAW is marked “B” and the

date of FHWA concurrence shown in B1.

For the next few ‘effect determinations’ I’m going to discuss, depending on the species and the activities associated with the project, there could be different effect determinations for different species. So when you are preparing your ESA packet and checking the boxes on the transmittal sheets make sure you include all the needed materials based on the effect determination for each

• species. Because as the FHWA transmittal sheets point out, NYSDOT needs

to send one ESA packet for all species to FHWA to review. Ok, so if your project qualifies for a “no effect” determination the ESA packet needs to include the Draft FHWA cover letter, the IPaC Official species list, the NMFS mappers, the DEC environmental resources mapper, and the FHWA transmittal forms. Also remember that for a “no effect” determination a habitat assessment will be required. The sponsor should submit the ESA Packet to the NYSDOT RLPL. The RLPL ensures the ESA packet is complete then sends it to the REUS. The REUS needs to ensure that the ESA packet is complete and that the project qualifies for a “no effect” determination. If the REUS has any edits, comments or changes that need to be made, they need to send the ESA packet back to the RLPL who sends it back to the sponsor for clarification. Also this is when the REUS is supposed to take the Draft FHWA letter that the local sponsor writes and put it on NYSDOT letterhead and address it to their FHWA Area engineer. Once the ESA packet is complete, the REUS then sends the ESA packet to the FHWA area engineer for review and concurrence. Once received, the REUS should share the FHWA concurrence letter with the RLPL and sponsor. All materials (including FHWA’s approval letter) are included in the design report appendix. The RLPL should confirm that the FEAW is marked “B” and that the date of FHWA concurrence is shown in B1.

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ESA Packet to NYSDOT

USWFS “No Effect – No Suitable Habitat”:

RLO ESA Packet NYSDOT RLPL RLPL ensures ESA packet is complete ESA Packet REUS REUS reviews ESA packet to ensure effect determination is accurate. REUS ESA Packet FHWA Area Engineer

(FHWA may/may not send concurrence letter, concurrence assumed after 7 days)

ESA Packet: FHWA Letter, IPaC OSL, NMFS Mapper(s), ERM, & Trans Form(s) REUS should share the FHWA concurrence letter (if received) with RLPL and RLO. All materials (including FHWA approval letter) are included in DAD appendix. RLPL should confirm that the FEAW is marked “B” and the date of FHWA concurrence shown in B1.

If your project qualifies for a “no effect no suitable habitat” determination, the ESA packet needs to include the Draft FHWA cover letter, the IPaC Official species list, the NMFS mappers, the DEC environmental resources mapper, and the FHWA transmittal sheets. Also remember that for an “no effect no suitable habitat” determination a habitat assessment will be required. The sponsor should submit the ESA Packet to the NYSDOT RLPL. The RLPL ensures the ESA packet is complete then sends it to the REUS. The REUS needs to ensure that the ESA packet is complete and that the project qualifies for a “no effect / no suitable” determination. If the REUS has any edits, comments or changes that need to be made, they need to send the ESA packet back to the RLPL who sends it back to the sponsor for clarification. Once the ESA packet is complete the REUS then sends the ESA packet to the FHWA area engineer for review and concurrence. FHWA may or may not send a concurrence letter back to NYSDOT, if no concurrence letter is received then concurrence is assumed after 7 business days have passed. If a concurrence letter is received the REUS should share the FHWA concurrence letter with RLPL and sponsor. If no letter is received the NYSDOT REUS should email the RLPL and sponsor and let them know 7 business days have passed and FHWA concurrence is assumed. All materials (including FHWA’s approval letter) are included in design report appendix. The RLPL should confirm that the FEAW is marked “B” and that the date of FHWA concurrence is shown in B1.

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ESA Packet to NYSDOT

NMFS “ESA PA Applies”:

RLO ESA Packet NYSDOT RLPL RLPL ensures ESA packet is complete ESA Packet REUS REUS reviews ESA packet to ensure effect determination is accurate. REUS ESA Packet NMFS with CC to FHWA Area Engineer

ESA Packet: FHWA Letter, PA Form, NMFS Mapper(s), ERM, & Trans Form(s) REUS should share the NMFS & FHWA concurrence letter (if received) with RLPL and RLO. All materials (including FHWA approval letter) are included in DAD appendix. RLPL should confirm that the FEAW is marked “B” and the date of FHWA concurrence shown in B1.

If your project qualifies for a NMFS “ESA Programmatic Agreement applies”, the ESA packet needs to include the Draft FHWA cover letter, the NMFS ESA Programmatic Agreement form, the NMFS mappers, the DEC environmental resources mapper, and the FHWA transmittal sheet. And of course a habitat assessment will be required. Now here is an example of where you could have different effect determinations for different species. Maybe IPaC shows various species and there’s no habitat for them within the project's action area. But the NMFS mapper shows ESA species and there is potential to impacts them. So you could have a “no effect no suitable habitat” determination for the USFWS managed species and an “ESA Programmatic Agreement Applies” for the NMFS managed species. But all the required documentation for each species needs to be included in the ONE ESA packet sent to NYSDOT. The sponsor should submit the ESA Packet to the NYSDOT RLPL. The RLPL ensures the ESA packet is complete then sends it to the REUS. The REUS needs to ensure that the ESA packet is complete and that the project qualifies for a NMFS “ESA Programmatic Agreement applies” determination. If the REUS has any edits, comments or changes that need to be made they should send the ESA packet back to the RLPL who sends it back to the sponsor for clarification. Once the ESA packet is complete the REUS then sends the ESA packet to NMFS with a CC to the FHWA area engineer for review and concurrence. NYSDOT staff should be aware that the USFWS species do not get sent as part of the NMFS ESA packet to NMFS. The USFWS species only get sent to FHWA for review and concurrence. Once received, the REUS should share the NMFS and FHWA concurrence letters with the RLPL and the sponsor. All materials (including the NMFS and FHWA approval letters) are included in the design report appendix. The RLPL should confirm that the FEAW is marked “B” and that the date of FHWA concurrence is shown in B1.

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ESA Packet to NYSDOT

NMFS “EFH PA Applies”:

RLO EFH Packet NYSDOT RLPL RLPL ensures EFH packet is complete EFH Packet REUS REUS reviews EFH packet to ensure effect determination is accurate. REUS EFH Packet NMFS with CC to FHWA Area Engineer

ESA Packet: FHWA Letter, PA Form, NMFS Mapper(s), ERM, & Trans Form(s) REUS should share the NMFS & FHWA concurrence letter (if received) with RLPL and RLO. All materials (including FHWA approval letter) are included in DAD appendix. RLPL should confirm that the FEAW is marked “B” and the date of FHWA concurrence shown on B1.

If your project qualifies for a NMFS “EFH Programmatic Agreement applies” the EFH packet needs to include the Draft FHWA cover letter, the NMFS EFH Programmatic Agreement form, the NMFS mappers, the DEC environmental resources mapper, and the FHWA transmittal sheet. And of course a habitat assessment will be required. The sponsor should submit the EFH Packet to the NYSDOT RLPL. The RLPL ensures the EFH packet is complete then sends it to the REUS. The REUS needs to ensure that the EFH packet is complete and that the project qualifies for a NMFS “EFH Programmatic Agreement applies” determination. If the REUS has any edits, comments or changes that need to be made they should send the EFH packet back to the RLPL who sends it back to the sponsor for

• clarification. Once the EFH packet is complete the REUS then sends the EFH

packet to NMFS with a CC to the FHWA area engineer for review and concurrence. Again be aware that the USFWS species do not get sent as part of the NMFS EFH packet. The USFWS species only get sent to FHWA to review and concure. Once received, the REUS should share the NMFS and FHWA concurrence letters with the RLPL and the sponsor. All materials (including the NMFS and FHWA approval letters) are included in the design report appendix. The RLPL should confirm that the FEAW is marked “B” and that the date of FHWA concurrence is shown in B1.

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ESA Packet to NYSDOT

USFWS/NMFS “Individual/Formal Consultation”:

Reach out to Regional NYSDOT Staff / ESB Staff & FHWA Area Engineer. This process can take up to a year+ and a Biological Evaluation

• r

a Biological Assessment (BE/BA) will need to be prepared by the RLO/their consultant.

If you project does not qualify for any

• f

the effect determinations listed, then individual or formal consultation will be required. Depending on the activity and the impacts to listed species, formal consultation can take up to a year. The local project sponsor will be required to prepare a Biological Evaluation or a Biological Assessment. The BE or BA should included a discussion about impacts for all species even if the project will have minimal impacts to them. Also the BE or BA would need to be shared with the DEC since all the federally listed species are also state listed. Coordination with all regulatory agencies should take place at the same time. If formal consultation is required you should reach out to the NYSDOT RLPL who should contact the REUS who should set up a meeting with NYSDOT main office and the FHWA area engineer to discuss the project.

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QUESTIONS

42

Q&A From Presentation

• What would be incorporated into a habitat assessment? Do we need to hire a

consultant to perform habitat assessments? An assessment of all the areas that will be impacted where protected species may

• ccur will need to be performed for all projects that do not qualify for a “No

effect/Activity Based” determination and have protected species come up during the required screening (on IPaC, the DEC ERM or the NMFS Mappers).

• Is there a way to select more than one project area in IPaC or the DEC ERM?

As of this time we are not aware of a way to select and screen for more than 1 project sites at a time in IPaC or the DEC ERM. Each site will have to be screened separately and a separate print out for each site will be required.

• Confirm for a submission of “No effect no suitable habitat” determination, if we

don’t hear back from FHWA in 7 days that we can assume concurrence? Does this apply for any other effect determination? Yes, per the USFWS Transmittal Sheet in the FHWA Guidance for “No Effect, No Suitable Habitat” determinations, FHWA has the option of not issuing a formal response letter and therefore concurrence is assumed after 7 business days. There are no other effect determinations that are applicable for this type of concurrence.

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Q&A From Presentation

• Hydro acoustical analysis is needed as of when?

https://www.fisheries.noaa.gov/new‐england‐mid‐ atlantic/consultations/section‐7‐consultation‐technical‐ guidance‐greater‐atlantic The above link is to, "NOAA Fisheries Section 7: Consultation Technical Guidance in the Greater Atlantic Region." The page features an acoustic tool https://www.fisheries.noaa.gov/webdam/download/97049475 and links to associated area of effect determination guidance docs on Turbidity and Vessel Traffic. This link can also be found in PDC #13 in Attachment 2: National Marine Fisheries Service ESA Verification Form of the June 2020 FHWA NY Division ESA & EFH compliance procedures (page 62 of the pdf).

44

Q&A From Presentation

• Are there a migratory flyway map for bird species with time of year they are in New York State?

https://www.audubon.org/atlantic‐flyway https://www.perkypet.com/articles/atlantic‐flyway‐migration https://www.fws.gov/birds/management/flyways.php https://www.ducks.org/conservation/where‐ducks‐unlimited‐works/waterfowl‐migration‐flyways/du‐ projects‐atlantic‐flyway Above are some links to more information on the Atlantic flyway for migratory birds. Additionally, per the “Federal Environmental Approval Worksheet Thresholds” in the Environmental Manual (https://www.dot.ny.gov/divisions/engineering/environmental‐analysis/manuals‐and‐ guidance/epm/repository/4_1_1_11_G.pdf ) below is the threshold pertaining to the Migratory Bird Treaty Act: “If the project increases the height of towers, constructs new towers or other obstructions in a known flyway, or disturbs active nests of protected species, check column B.” (This means that coordination with FHWA pertaining to Migratory Bird Treaty Act compliance is required). The sponsor should contact the Local Project Liaison if this occurs. The Regional Environmental Unit Supervisor may need to reach out to Main Office or the FHWA to determine the amount/ type of documentation required. 45

For More Information

Christa Ippoliti: 518‐485‐9967 christa.ippoliti@dot.ny.gov Stephanie DeLano: 518‐417‐6686 stephanie.delano@dot.ny.gov Melissa Toni: 518‐ 431‐8867 Melissa.toni@dot.gov

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