Endangered Species Act Compliance in Floodplain Map Changes

William O’Brien, PE; Lauren Cole, MA; Colleen Del VecchioNextGen Engineering, Inc.Ojai,Ventura County, CA

Ventura, CA Housing Development Project

Key Question:

How can project proponents meet ESA compliance regulations

AND maintain project scheduling?

When is Endangered Species Act (ESA) Compliance needed for Flood Map Changes?

CLOMR

CLOMR-F

FEMA’s Requirements Copy of an Incidental Take Permit

Copy of Incidental Take Statement

“Not Likely to Adversely Affect” Determination Letter from National Marine Fisheries Service* (NMFS) or U.S. Fish and Wildlife Service (USFWS)

OR

Official “No Effect” Letter from NMFS* or USFWS

*Note NMFS is involved only if fish species could be affected, your local USFWS office should direct you.

U.S. Fish and Wildlife Service Requirements Section 7 of the ESA called “Interagency Cooperation” is the

process Federal agencies ensure actions they authorize do not jeopardize the existence of any listed specie.

USFWS Determines further measures that are needed:- Incidental Take Permit

OR

- One of the following: “No Effect” Determination Letter “Not Likely to Affect” Determination Letter Incidental Take Statement (“Adversely Effect a Specie, NOT jeopardize”)

Path to ESA Compliance

Immediately contact local USFWS office to:

Begin interagency communication and consultation process

(you will need a local biologist)

Identify if listed species exist on subject property

If Fish Species are involved, NMFS needs to be contacted

Determine whether or not the project associated with the CLOMR request

would adversely affect species or designated critical habitat

Step 1

Step 2

Step 3

End Consultation

Conclude “No Effect” and End

Consultation

Incorporate Species

Conservation Measures

Species/Critical Habitat Affected?

Species/Critical Habitat Present?

Species/Critical Habitat May Be

Adversely Affected?

Submit Request for Formal Consultation

to USFWS

Submit Rationale and Request Concurrence to

USFWS

No

No

No

Yes

Yes

Yes Yes

ESA Compliance Flow Chart

http://www.fws.gov/midwest/endangered/section7/s7process/s7st

epxstep.html

Informal Consultation Process

Step 1 of the Flow Chart:

Determine with a biologist or local USFWS Office:

• If listed species are present and what kind

• If the proposed project area is within critical habitat

If “No Species Present”, document your findings in a report to

the USFWS office (example letters available on their website) .

USFWS will prepare a “No Effect” Determination Letter

That must be submitted with your CLOMR Application.

Formal ConsultationStep 2 of flow chart:

If listed species are present or project is in critical habitat:

• A biological assessment is required for USFWS to make a determination

• Use USFWS Standard Protocol for Biological Surveys (modified surveys can be approved)

• A biologist must write a report and submit to USFWS

• A Letter of Determination will be received from USFWS, Submit with your CLOMR Application

*If species or critical habitat are in jeopardy, additional conservation measures will be required in project plans

NextGen Project Examples

Submitted Categorical Exemption Certificate with CEQA- Not Approved

Delay of 2 months and $1000, due to lack of clarification by FEMA and other agencies regarding ESA Compliance Local newspaper article written describing frustration of the agencies

communications (FEMA, USFWS, City of Camarillo) and next day FEMA called willing to begin the informal consultation

End Result: Informal Consultation (Project within an entirely developed area), local biologist report to USFWS supporting “No Effect”

Approved by USFWS 1 Month Later

Sent Official USFWS letter to FEMA with CLOMR Application

Camarillo, CA Fitness Center at Leisure Village

Leisure Village Project Flood Map

NextGen Project Examples Continued…

Ventura, CA Housing Development near Brown Barranca

• Initial Biological Surveys were started too late in the year and not in standard protocol format for the endangered specie affected, delaying ESA Compliance by a construction season

• Modified Surveys were approved by the local USFWS office

• Interagency miscommunications between USFWS and FEMA increased project delays

• End Result: • Formal Consultation required, contributed to project delay,• Biological Assessment and Report completed, USFWS reviewing

Brown Barranca Agency Permitting Map

Interagency Communication- FEMA vs. USFWSBrown Barranca Housing Development showed misunderstanding of federal agency’s roles.

Letter received on August 22, 2014 from the local USFWS office after USFWS rejected the “No Effect” statement.

“If FEMA or its designated non-federal representative determines the Development Project would have “no effect” on any federally listed species or designated critical habitat, then FEMA may proceed without further consultation under the Act. If FEMA… determines that the project “may affect”… then FEMA must contact the Service [USFWS] to complete consultation.”

Project Scheduling with ESA If project occurs within a natural setting and endangered

species/critical habitat are in project area plan forAT LEAST:

10-12 Weeks of Biological Surveys (Survey Time Dependent on Species)

16-20 Weeks for the official USFSW or NMFS Biological Opinion

*Note timelines are approximations

Contact local offices for FEMA and USFWS with a project description for scheduling information.

Can a Project be Expedited?

If project occurs within an entirely developed area (an area that is paved or supports structures, vegetation limited to grass or conventional landscaping), then YES!

This path is an Informal Consultation

Write a “No Effect” Report documenting your findings with project description and submit to USFWS (format provided on their website)

USFWS writes a letter of concurrence that will be submitted with the CLOMR application

Future of ESA Compliance

Can ESA compliance regulations change to allow applicants

more clarity and offer a clearer process for interagency

communication?

References

FEMA’s Official Website: Compliance with the Endangered Species Act for Letters of Map Change

https://www.fema.gov/compliance-endangered-species-act-letters-map-change

U.S. Fish and Wildlife Service: Section 7 Consultationhttp://www.fws.gov/midwest/endangered/section7/section7.html

Summary Handout

Questions?www.NGenEng.com

805-798-7664