Programmatic_Biological_Agreement_for_Indiana_Bat_and_NLEB.pdf

Programmatic Biological Opinion for Transportation Projects in the Range of the Indiana Bat and Northern Long-Eared Bat

Revised February 2018 Consultation Code: 09E00000-2016-F-0001

Prepared by:

U.S. Fish and Wildlife Service Midwest Regional Office Bloomington, Minnesota

In conjunction with:

Federal Highway Administration Federal Railroad Administration Federal Transit Administration

Lori Nordstrom, Assistant Regional Director Date i

TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................................................................... I

LIST OF FIGURES ............................................................................................................................................... IV

LIST OF TABLES ................................................................................................................................................. IV

ACRONYMS........................................................................................................................................................ V

1. INTRODUCTION

1.1 PROGRAMMATIC CONSULTATION PROCESS

Projects Not Likely to Adversely Affect Indiana bat and/or NLEB Projects Likely to Adversely Affect Indiana bats and/or NLEB Projects with Additional Information Needs

1.2 ADAPTIVE MANAGEMENT

Monitoring Reporting

1.3 CONSULTATION HISTORY

1.4 BIOLOGICAL OPINION

2. DESCRIPTION OF THE PROPOSED ACTION

2.1 INTRODUCTION

2.2 PROJECTS INCLUDED IN THIS PROGRAMMATIC CONSULTATION

New Road/Rail Construction Staging Areas Offsite Use Areas Site Preparation Culvert Installation Bridge Construction Roadway Construction Rail and Transit Second Mainline, Siding, and Turnout Track Construction Rail and Transit Access Road, Fencing, and Drainage Improvements Equipment Post Construction

2.3 SAFETY AND MOBILITY

Railroad Grade Separation

2.4 MAINTENANCE, PRESERVATION, AND FACILITIES IMPROVEMENTS

Bridge Repair, Retrofit, and Maintenance Drainage System Repair and Maintenance Pavement Preservation Facilities Preservation and Rail Reconstruction

2.5 SLIDE ABATEMENT

Landslide Rockfall Debris Flow Slope Erosion and Failure Settlement ii

Blasting

2.6 BANK STABILIZATION, FLOOD DAMAGE, AND SINKHOLE REPAIR

Bank Stabilization and Flood Damage Repair Sinkhole Repair

2.7 TRANSPORTATION ENHANCEMENTS

2.8 OTHER COMMON ACTIVITIES

Geotechnical Drilling and Hazardous Waste Sampling Herbicide Application

2.9 INDIANA BAT AND NLEB IMPACT AVOIDANCE AND MINIMIZATION MEASURES

AMMs for Programmatic Informal AMMs for Programmatic Formal

2.10 INDIANA BAT IMPACT COMPENSATION MEASURES

Conservation Goal Conservation Pathways (Options)

3. COMPENSATORY MITIGATION MEASURES AND CONSERVATION FOCUS AREAS

3.1 CONSERVATION FOCUS AREAS ESTABLISHMENT

PRIORITY 1

PRIORITY 2

PRIORITY 3

3.2 COMPENSATORY MITIGATION CALCULATION METHOD

Determination of Compensatory Mitigation Timing of Mitigation Compliance Protection in Perpetuity Inter-State Mitigation Mitigation Implementation and Monitoring

4. STATUS OF THE SPECIES AND CRITICAL HABITAT

4.1 DISTRIBUTION

Northern Long-Eared Bat Indiana Bat Critical Habitat

4.2 LIFE HISTORY AND BIOLOGY

Summer Habitat and Ecology Maternity Colonies and Roosts Reproduction Migration Winter Habitat and Ecology Spring Staging and Fall Swarming Habitat and Ecology

4.3 FACTORS AFFECTING SPECIES’ ENVIRONMENT WITHIN THE ACTION AREA

5. EFFECTS OF THE ACTION

5.1 EFFECTS ANALYSES OVERVIEW

5.2 RESOURCE #1–ACTIVE SEASON HABITAT (NATURAL)

Summer Habitat Fall Swarming/Spring Emergence Habitat iii

Stressors Stressor #1–Noise/Vibration Stressor #2–Tree Removal Stressor #3–Lighting Stressor #4–Alteration of Clean Drinking Water, Foraging Habitat, and Composition of Insect Prey Base Stressor #5–Alteration of Clean Air (Slash Pile Burning) Stressor #6–Collision

5.3 RESOURCE #2–BRIDGES/ARTIFICIAL ROOSTS

Stressor–Bridge Alteration/Removal–Active Season Stressor–Bridge Alteration/Removal–Inactive/Winter Season

5.4 RESOURCE #3–STRUCTURES (ARTIFICIAL ROOST)

Stressor #1–Structure Maintenance/Removal–Active Season Stressor #2–Structure Maintenance/Alteration/Demolition–Inactive/Winter Season

5.5 RESOURCE #4–WINTER HABITAT

Stressors Stressor #1–Direct Effects to Bats Stressor #2–Changes to Microclimate Stressor #3–Physical Changes to Hibernacula

5.6 SUMMARY OF EFFECTS

Transportation Projects Outside Scope of Consultation–(Separate Consultation Needed) Actions That Will Have No Effect on Bats and/or Indiana Bat Critical Habitat

5.7 BENEFICIAL EFFECTS

6. CUMULATIVE EFFECTS

7. CONCLUSION

7.1 INDIANA BAT

7.2 NORTHERN LONG-EARED BAT

8. INCIDENTAL TAKE STATEMENT

8.1 NLEB

8.2 INDIANA BAT

Amount or Extent of Take of Indiana Bats Anticipated

8.3 EFFECT OF THE TAKE

8.4 REASONABLE AND PRUDENT MEASURES

Terms and Conditions Monitoring and Reporting Requirements

9. CONSERVATION RECOMMENDATIONS

10. REINITIATION NOTICE

LITERATURE CITED

iv

LIST OF FIGURES

Figure 1. Project Action Area Figure 2. Maternity colony home range (2.5-mile radius circle) that is habitat limited and particularly appropriate for habitat restoration - potential restoration and protection of roosting, foraging, and corridor habitat is shown Figure 3. Five-mile buffer around a hibernaculum reflecting a landscape that is suitable for both protection and restoration of staging/swarming habitat Figure 4. Indiana bat range-wide population estimates from 1981–2015. A. King, USFWS, Bloomington, Indiana, revised 8/25/15

LIST OF TABLES

Table 1. Estimated Average Annual Acres of Cleared Suitable Habitat Table 2. Bridge Removal Technique Examples Table 3. Compensatory mitigation ratios for Indiana bat Table 4. Calculation of Impact Acres and Compensatory Mitigation Table 5. Distance of Indiana Bat Roosts to Existing Road (Centerline) (Source: USFWS unpublished data).

Table 6. Distance of Indiana Bat Roosts to Existing Road Edge (Based on 15 ft. of Road and ROW) (Source: USFWS unpublished data) Table 7. Summary of Activities That May Directly Affect Bats or Affect Bats by Altering Their Hibernaculum(a) Table 8. Vibration Source Levels for Construction Equipment Table 9. Activities <0.5 miles of hibernacula Table 10. Non-tree Removal Activities >0.5 miles of hibernacula Table 11. Tree Removal Activities >0.5 miles of hibernacula Table 12. Bridge Projects Table 13. Structure Projects v

ACRONYMS

AASHTO American Association of State Highway and Transportation Officials ALIS Accident Location Information System AMM Avoidance and Minimization Measure BA Biological Assessment BO Biological Opinion BMP Best Management Practice DBH Diameter at Breast Height DOT Department of Transportation EPA Environmental Protection Agency ESA Endangered Species Act FAHP Federal-Aid Highway Program FHWA Federal Highway Administration FLHP Federal Lands Highway Program FLMA Federal Land Management Agency FRA Federal Railroad Administration FTA Federal Transit Administration HMA Hotmix Asphalt HPS High Pressure Sodium LAA Likely to Adversely Affect LED Light-Emitting Diode LPA Local Public Agency NE No Effect NEPA National Environmental Policy Act NLAA Not Likely to Adversely Affect NLEB Northern Long-Eared Bat NPDES National Pollution Discharge Elimination System NPS National Park Service P1/P2 Priority 1, Priority 2 P/A Presence/Absence Survey PCCP Portland Cement Concrete Pavement POC Point of Contact PPV Peak Particle Velocity ROW Right-of-Way SOP Standard operating Procedure SWPPP Storm Water Pollution Prevention Plan TAILS Tracking and Integrated Logging System TOY Time-of-Year TRT Track Renewal Train USACE U.S. Army Corps of Engineers USDOT U.S. Department of Transportation USFS U.S. Forest Service USFWS U.S. Fish and Wildlife Service WNS White-Nose Syndrome

1. INTRODUCTION

The Federal Highway Administration (FHWA), Federal Railroad Administration (FRA), and Federal Transit Administration (FTA) [Transportation Agencies] and U.S. Fish and Wildlife Service (USFWS) have been working together over the past several years to streamline consultation and improve conservation for two listed bat species. As part of this effort they jointly developed a Range-wide Programmatic Biological Assessment (BA) for common types of transportation projects that State or local Departments of Transportation conduct with federal funding and/or approval. The purpose of the consultation is twofold:

• to streamline the Endangered Species Act (ESA) consultation process that is required when these projects may affect the federally listed endangered Indiana bat (Myotis sodalis) and the federally listed threatened northern long-eared bat (Myotis septentrionalis) (NLEB); and

• to promote better conservation outcomes from these projects for both species.

This consultation does not cover all types of projects that the Transportation Agencies fund or approve.

The BA defines the scope of, and criteria applicable to, projects that may rely upon the findings and streamlined processes of the Biological Opinion (BO) herein for compliance with section 7(a)(2) of the ESA. Separate section 7 consultation is required for projects that are outside the scope and criteria of the BA or projects that may affect other ESA-listed species and/or their designated critical habitat.

For transportation projects that involve Federal permits, such as U.S. Army Corps of Engineers (USACE) permits under the Clean Water Act, the Transportation Agencies will generally serve as the lead Federal agency for ESA consultation purposes. The Transportation Agencies may use this consultation, consult on a case-by-case basis, or use another applicable programmatic consultation for projects they fund or approve. Likewise, for transportation projects that involve Federal Land Management Agencies (FLMAs), the Transportation Agencies may use this consultation, consult on a case-by-case basis, or use another applicable programmatic consultation developed by the FLMA (e.g., programmatic consultations established for USFWS National Wildlife Refuges, US Department of Agriculture Forest Service [USFS] lands).

1.1 Programmatic Consultation Process

Programmatic consultations increase the efficiency of ESA section 7 consultations by addressing multiple actions on a program, regional, or other basis, and may also expedite permitting processes for such actions. This consultation applies to future projects that the Transportation Agencies may fund or approve within the geographic range of, and habitats suitable for, the two bat species that are consistent with the programmatic action, including its conservation measures, as described in the BA and this document.

Projects included in the programmatic scope of this consultation include those that result in no effect (NE) or may affect for the Indiana bat and/or the NLEB. It provides advance USFWS concurrence with “not likely to adversely affect” (NLAA) determinations that are consistent with these criteria, subject to project-level verification. For “likely to adversely affect” (LAA) determinations, it provides the opinion of the USFWS that projects which are consistent with the program are not likely to jeopardize the continued existence of the two bat species. It provides an incidental take statement for the Indiana bat, but not for the NLEB. On January 5, 2016, the USFWS published a final species-specific rule pursuant to section 4(d) of the Act for the NLEB (50 CFR §17.40(o)). The section 4(d) rule identifies prohibited take of the NLEB, as well as take that is exempted from section 9 prohibitions of the Act. Incidental take of the NLEB that may occur from the programmatic is in compliance with the 4(d) rule and thus not prohibited.

The Indiana bat incidental take statement includes terms and conditions for the Transportation Agencies’ implementation of the program. We describe NE, NLAA, and LAA categories of projects, and the corresponding project-level processes for using this document to comply with ESA section 7 below.

Projects Not Likely to Adversely Affect Indiana bat and/or NLEB

Section 5.6 of the BO summarizes the characteristics of transportation projects that are NLAA Indiana bats and/or NLEB. These projects may rely on this consultation with no additional site-specific consultation between the Transportation Agencies, State Departments of Transportation (DOTs), and USFWS. Rather, there is a short “check-in” with the local USFWS Field Office. Transportation Agencies and/or State DOTs will either complete the Assisted Determination Key in the Information for Planning and Consultation (IPaC) System1 or send a Project Submittal Form to the appropriate USFWS Field Office prior to project commencement (as described in the User’s Guide available at the USFWS Midwest Endangered Species website). Transportation Agencies and/or State DOTs will ensure that all submitted projects are within the scope of and adhere to the criteria of the Program.

Upon receipt of an effects determination letter (through the IPaC Assisted Determination Key process) or Project Submittal Form, USFWS Field Offices may check for program consistency and request additional information that is necessary to verify such consistency. USFWS Field Offices have 14 calendar days (as described in the User’s Guide available at the USFWS Midwest Endangered Species website) to notify Transportation Agencies and/or State DOTs if they determine a particular project does not meet the criteria for a NLAA. If Transportation Agencies and/or State DOTs are not so notified, they may proceed under the programmatic consultation. This verification period is not intended as another level of review. The presumption is that the vast majority of submitted projects fall correctly within the programmatic consultation. Rather, it is an opportunity for USFWS Field Offices to apply local knowledge to these projects, and they may identify a small subset of projects as potentially having unanticipated impacts.

Projects Likely to Adversely Affect Indiana bats and/or NLEB

Section 5.6 of the BO also summarizes the characteristics of transportation projects that are LAA for Indiana bats and/or NLEB. These projects may rely on this consultation in a manner similar to projects

1 https://ecos.fws.gov/ipac/ that are NLAA the two bat species, described above; however, a response from the USFWS Field Office of applicable jurisdiction is required. Transportation Agencies and/or State DOTs will either complete the IPaC Assisted Determination Key or send a Project Submittal Form to the appropriate USFWS Field Office prior to project commencement (as described in the User’s Guide available at the USFWS Midwest Endangered Species website). This form:

• describes the proposed action (e.g., type of action, location, involved Federal agencies);

• verifies that the project is within the scope of the programmatic range-wide consultation;

• provides a quantification of impacts (e.g., acres of tree removal, timing of tree removal, bridge work); and

• identifies all proposed conservation measures that will avoid, minimize, and compensate for the project’s impacts.

USFWS Field Offices will respond within 30 calendar days2 (instead of 135 calendar days) to consultation requests that are accompanied by a complete effects determination letter (through the IPaC Assisted Determination Key process) or Project Submittal Form and are then correctly verified as covered under the BO. However, if a project requires formal consultation for other listed species or designated critical habitats, the Field Office will verify project consistency with this BO within a project-specific BO that addresses all adversely affected species/critical habitats, to which the standard consultation procedures and timeline (135 calendar days) apply, unless there are other established consultation timelines for those species (e.g. other programmatic consultations).

The USFWS Field Office response to a complete and correct effects determination letter (through the IPaC Assisted Determination Key process) or Project Submittal Form for projects that are LAA the two bats will be to:

• verify that all applicable conservation measures are included in the project proposal;

• verify that the project is consistent with the programmatic sideboards for covered projects; and

• identify any project-specific monitoring and reporting requirements, consistent with the monitoring and reporting requirements for the program as a whole (see Section 8 of the BO).

Projects with Additional Information Needs

The Transportation Agencies and/or State DOTs may determine that a proposed project requires additional site-specific information to determine whether it conforms to this consultation. Such projects will require Transportation Agencies and/or State DOTs to coordinate with the appropriate USFWS Field Office(s) in order to make a final determination pursuant to section 7(a)(2) (as described in the User’s Guide available at the USFWS Midwest Endangered Species website). If a project “may affect” any other federally-listed or proposed species, additional consultation (or conference for proposed species and critical habitats, if applicable) is required.

2 30-day clock starts upon USFWS Field Office receipt of a complete effects determination letter (through the IPaC Assisted Determination Key process) or Project Submittal Form.

1.2 Adaptive Management

The Transportation Agencies and USFWS will review feedback from users and new information regarding the species’ ecology, conservation, and project effects to adaptively manage how the program is working to serve its two main purposes: streamline the consultation process, and promote better conservation outcomes from its projects for both species. Adaptive management guidelines are provided and the agencies will develop a more detailed adaptive management plan this year.

The Transportation Agencies and USFWS will designate points of contact (POC) that will have responsibility for the ongoing implementation of the programmatic consultation. The Transportation Agencies, collectively, may have one or multiple POCs. The POCs will coordinate adaptive management and reporting at the programmatic scale (analyses of data, implementation of program changes, reporting out to management, etc.). The POCs may also stipulate areas of the programmatic consultations for more active data gathering as circumstances warrant.

There is no hard expiration date for this consultation, but the Transportation Agencies and USFWS will conduct an annual review of the program. Standard consultation reinitiation conditions (e.g., new information on species or effects) apply. Additional information may warrant changes to the programmatic BA, either for the entire range of the species or specific geographic areas. For example, new data about the proximity of bat roosts to roads or bat use of specific bridge types could warrant revising the effects analyses. Although the agencies will consider changes to the consultation on an annual cycle, such changes may occur at any time the agencies mutually agree is appropriate. At any time, the Transportation Agencies or the USFWS may withdraw from participating in the program if either determine that it is failing to serve the intended purposes.

The annual meeting of POCs from the USFWS and the FHWA (and other Transportation Agencies if they choose) will:

• discuss the annual report of covered projects;

• assess information received from the field and new relevant research over the preceding year and determine, by consensus, whether such information warrants changes to the program;

• evaluate the effectiveness of the tracking and reporting processes;

• evaluate the effectiveness of the program to streamline the consultation process and conserve the bat species; and

• discuss and resolve any issues related to the program.

Monitoring

Monitoring implementation of this range-wide consultation begins with the IPaC Assisted Determination Key Letters or Project Submittal Forms, from which USFWS Field Offices will log key information in the Tracking and Integrated Logging System (TAILS) (see Reporting below). Further, the POCs will acquire additional information (e.g., bridge assessments, bat surveys, etc.) as necessary from participating transportation agencies and USFWS Field Offices. The POCs will evaluate this information at least annually and make any needed minor modifications to the consultation by mutual agreement among the agencies. Examples of the kinds of modifications expected include, but are not limited to: updating the IPaC Assisted Determination Key, Project Submittal Forms, updating standard operating procedures (SOPs) for reporting, and updating bat survey or other pertinent guidance.

The POCs may also use input from the field to make more substantive changes in the consultation (e.g., revising the impact avoidance and minimization measures [AMMs]) when appropriate. New information prompting such changes may or may not require a reinitiation of the consultation. Research funded through the programs’ compensatory mitigation measures, the Transportation Agencies’ ESA section 7(a)(1) conservation strategy, or other sources, may also provide substantive, technical information that is relevant to potential program revisions.

Monitoring the outcome of compensatory mitigation measures is required according to the guidelines in section 3.2 regardless of who is responsible for implementing compensation measures.

Transportation Agencies or their representatives will monitor the outcome of compensatory mitigation measures. For projects electing to use an in-lieu fee mechanism or conservation bank to accomplish the compensatory, the in-lieu fee or conservation bank managing organization becomes responsible for monitoring and reporting the success of compensatory mitigation measures.

Reporting

The Transportation Agencies and/or State DOTs must either complete the IPaC Assisted Determination Key or provide the local USFWS Field Office a Project Submittal Form, or an analog that supplies the same data, for each project they wish to include in this program for purposes of ESA section 7 compliance. USFWS Field Offices will employ SOPs to enter specific data from these forms into the TAILS system. The User’s Guide describes these SOPs, specific monitoring requirements, and other details regarding this process and will be available on the USFWS Midwest Endangered Species website.

Agency POCs will coordinate together to compile the site-specific information collected for each project using the programmatic consultation into an annual report. The annual report will allow the POCs to track the number of projects, type of action, acres of habitat affected, amount and type of mitigation, etc. This report will also be used for adaptive management as described above.

1.3 Consultation History

August 2012 FHWA and the USFWS (Regions 3, 4, and 5) signed a scope of work to collaborate on a pilot effort to develop a regional conservation strategy for Indiana bats to help expedite the consultation process related to transportation projects. The purpose was to complete an informal programmatic consultation and conservation framework and tools.

December 2013 FHWA and USFWS team met in Harrisburg, PA to discuss the programmatic consultation.

February 2014 FRA joined the programmatic consultation.

April 2014 FHWA and USFWS team met in Frankfurt, KY to discuss the programmatic consultation.

September 2014 FHWA and USFWS team met in Boston, MA to discuss the programmatic consultation.

August 2014 The scope of work was modified to include the NLEB in the programmatic informal consultation.

March 2015 FHWA and USFWS team met in Bloomington, MN to discuss the programmatic consultation.

March 2015 FHWA and the USFWS agreed to add a suite of projects that “may affect, likely to adversely affect” in the programmatic consultation. This addition resulted in the need to revise the BA, and for FHWA to initiate formal consultation upon completion of the revised BA.

April 2015 The Range-Wide Biological Assessment for Transportation Projects for Indiana Bat and NLEB jointly developed by USFWS, FHWA and FRA was completed for the programmatic informal and the USFWS subsequently provided concurrence.

November 2015 FHWA and USFWS team met in Boston, MA to discuss revision of the BA and the addition of the formal component of the range-wide programmatic consultation.

November 2015 FTA joined the programmatic consultation.

January 5, 2016 The USFWS published a final species-specific rule pursuant to section 4(d) of the

ESA for the NLEB (50 CFR §17.40(o)), which became effective February 16, 2016.

May 2016 FHWA/FRA/FTA and the USFWS completed the revised BA and FHWA/FRA/FTA subsequently initiated formal consultation.

June to October 2016 FHWA/FRA/FTA and USFWS gathered comments from the users implementing the May 2016 BA.

November 2016 FHWA/FRA/FTA and the USFWS completed a revised BA that added clarifying language and requirements dated November 28, 2016 December 2016 FHWA/FRA/FTA reinitiated formal consultation.

December 16, 2016 USFWS issued revised BO.

Jan. to Dec. 2017 FHWA/FRA/FTA and USFWS gathered feedback/comments from the users implementing the December 2016 BO.

January 2018 FHWA/FRA/FTA submitted a request for BO revision.

February 2018 USFWS issues revised BO.

This revised BO is based on information provided in the November 2016 BA, telephone conversations, meetings, and other sources of information. A complete administrative record of this consultation is on file at the USFWS’s Midwest Regional Office in Bloomington, MN.

1.4 Biological Opinion

A BO is the document that states the opinion of the USFWS as to whether a federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of designated critical habitat (50 CFR §402.02). “To jeopardize the continued existence of a listed species” means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of the species (50 CFR §402.02).

This BO addresses the Limited Range-wide Program for the Transportation Agencies for the Indiana bat and the NLEB.

2. DESCRIPTION OF THE PROPOSED ACTION

2.1 Introduction

As defined in the ESA Section 7 regulations (50 CFR 402.02), “action” means “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by federal agencies in the United States or upon the high seas.” The “action area”3 is defined as “all areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action.” The Service has determined that the action area for this programmatic consultation, hereby referred to as the “action area” is all lands within the range of the Indiana bat and northern long-eared bat affected directly or indirectly by the project’s components described in the Description of the Proposed Action. For the sake of this consultation, the action area for individual projects analyzed by this programmatic consultation will be referred to as “project action area”.

3 Further clarification is provided by the national consultation FAQs at https://www.fws.gov/endangered/what-we-do/faq.html#18.

Project Footprint

Project Action Area

Lighting

Noise

Water Quality and Quantity

Staging Area

Figure 1. Project Action Area

The proposed action is the implementation of the projects funded or authorized by the Transportation Agencies. This section provides a brief general description of the projects of each agency, followed by a description of the projects that are covered in this programmatic consultation, with an estimation of the extent of annual project activity for all the Transportation Agencies combined. Sections 2.2 through 2.8 provide more detailed descriptions of various types of covered projects, but all conform to the overall description provided in this Section 2.1. Sections 2.9 describes the impact avoidance and minimization measures that apply to all covered projects, as appropriate, and Section 2.10 describes the impact compensation measures that apply to all covered projects.

FHWA provides stewardship over the construction, maintenance, and preservation of the Nation’s highways, bridges, and tunnels. FHWA also conducts research and provides technical assistance to Federal, State, Tribes, and local agencies in an effort to improve safety, mobility, and livability, and to encourage innovation. FHWA strives to advance environmental stewardship and streamlining for FHWA-funded projects through the application of National Environmental Policy Act (NEPA) and related environmental laws and regulations.

The Federal-Aid Highway Program (FAHP) and Federal Lands Highway Program are two FHWA programs addressed in this BA. The FAHP provides the financial resources and mechanism to assist States and local public agencies (LPAs) in constructing, preserving, and improving transportation for the movement of people and goods. FAHP funds are authorized by Congress; tax dollars are allocated and distributed by

FHWA directly to the State DOT, as a direct-recipient for Federal-aid projects or LPAs, as sub-recipients, for “eligible” activities.

The Federal Lands Highway Program (FLHP) provides financial resources and technical assistance to support a coordinated program of public roads that service the transportation needs of Federal and Tribal lands. FLMAs include: the Bureau of Indian Affairs, Bureau of Land Management, Bureau of Reclamation, Surface Deployment and Distribution Command, USFS, USFWS, National Park Service (NPS), and the USACE.

The FRA is responsible for working with stakeholders to develop cohesive goals and policies for maintaining and improving U.S. freight and passenger rail networks, including approximately 760 railroads. The agency conducts strategic investment to accommodate growing travel and freight demands and provides leadership in national and regional system planning and development. FRA implements federal environmental laws and policies related to railroads, and provides information and resources for environmentally sound planning and development.

The FTA provides financial assistance and oversees grants to State and local transit providers for the use in improving, operating and maintaining transit service. These grantees are responsible for managing their programs in accordance with Federal requirements, including the National Environmental Policy Act and other environmental requirements, and FTA is responsible for working with sponsors of transit projects to ensure compliance.

Public transportation projects, also called transit projects, include capital facilities to support a variety of transit modes including: buses, subways, light rail, commuter rail, monorail, passenger ferry boats, trolleys, inclined railways, and people movers. Public transportation projects are generally located in urban areas and include: fixed and varied bus route services; operating and maintenance facilities;

stations and parking facilities; and linear fixed route bus rapid transit and rail lines.

For State or local transportation projects without any Federal involvement (e.g., no FHWA or USACE permits required), AMMs described within this document can be used to help design projects to avoid incidental “take”4 of Indiana bats and NLEBs. Coordinate with the local USFWS Field Office for additional assistance.

2.2 Projects Included in this Programmatic Consultation

Across the range of the bats the distance of existing road (interstate, State highway, and local roads) varies from approximately 1,500-146,000 miles with an average of approximately 80,000 miles of road and 3,000-6,000 miles of rail per State. On an annual basis, the number of existing road and rail miles

4 Take is defined in section 3 of the ESA as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.

undergoing maintenance or improvements involving tree clearing in suitable habitat will largely be influenced by available funding. Maintenance and improvement projects are expected to occur on only a fraction of a percent of the total infrastructure network annually.

The proposed action includes multiple transportation actions. Some of those actions need no further consultation and some need additional consultation with a local USFWS Field Office. Other transportation actions are not included in the proposed action. Projects included in the proposed action are:

• Limited set of transportation activities anywhere, including within 0.5 miles of Indiana bat and/ or NLEB hibernacula that:

o Do not involve any construction5 (e.g., bridge/abandoned structure assessments, surveys, planning and technical studies, property inspections, and property sales); or o Do not cause any stressors to the bat species, including as described in the BA/BO (i.e.

do not involve ground disturbance, percussive noise, temporary or permanent lighting, tree removal/trimming, nor bridge/structure activities (e.g., lining roadways, unlighted signage , rail road crossing signals, signal lighting, and minor road repair such as asphalt fill of potholes, etc.)); or o Are limited to the maintenance of the surrounding landscape at existing facilities (e.g., rest areas, stormwater detention basins) such as:

activities with suitable summer habitat present that have no tree removal/trimming and/or no new ground disturbance, activities with no suitable summer habitat present that have no new ground disturbance.

and

• Limited set of transportation activities >0.5 miles6 from a Indiana bat and/ or NLEB hibernaculum AND within 300 feet (ft.) of existing road/rail surfaces7 except those that:

o Raise the road profile above the tree canopy within 1,000 ft. of documented habitat8 (based on documented roosts/captures); or o Involve removal of documented Indiana bat roosting/foraging habitat9 or travel corridors10 between May 1 and July 31; or

5 Construction refers to activities involving ground disturbance, percussive noise, and/or lighting.

6 This is intentionally larger than the ¼-mile radius addressed in the NLEB final 4(d) rule. Projects closer than 0.5 miles from a known hibernaculum require additional coordination with the USFWS FO.

7 Road surface is defined as the actively used (e.g. motorized vehicles) driving surface and shoulders (may be pavement, gravel, etc.) and rail surface is defined as the edge of the actively used rail ballast.

8 For the purposes of this programmatic, we are considering documented habitat as that where Indiana bats and/or NLEB have actually been captured and tracked using (1) radio telemetry to roosts; (2) radio telemetry biangulation/triangulation to estimate foraging areas; or (3) foraging areas with repeated use documented using acoustics. Documented roosting habitat is also considered as suitable summer habitat within 0.25 miles of documented roosts.

9 Documented roosting or foraging habitat – for the purposes of this BA, we are considering documented habitat as that where Indiana bats and/or NLEB have actually been captured and tracked using (1) radio telemetry to o Involve removal of documented NLEB roosts (or trees within 150 ft. of those roosts) between June 1 and July 31; or o Impact a known hibernaculum, or a karst feature (e.g., sinkhole, losing stream, or spring) that could result in effects to a known hibernaculum; or o Involve percussives (or other activities that increase noise above existing traffic/background levels) not associated with tree removal/trimming or bridge/structure work when conducted during the active season within areas that contain documented habitat.

and

• Limited set of transportation activities >0.5 miles from a Indiana bat and/ or NLEB hibernaculum

AND outside 300 ft. of existing road/rail surfaces that:

o Do not involve any construction (e.g., bridge/abandoned structure assessments, surveys, planning and technical studies, property inspections, and property sales); or o Do not cause any stressors to the bat species, including as described in the BA/BO (i.e.

do not involve ground disturbance, percussive noise, temporary or permanent lighting, tree removal/trimming, nor bridge/structure activities (e.g., lining roadways, unlighted signage , rail road crossing signals, signal lighting, and minor road repair such as asphalt fill of potholes, etc.)); or o Are limited to maintenance of the surrounding landscape at existing facilities (e.g., rest areas, stormwater detention basins) -- no new ground disturbance and no tree trimming/removal if suitable summer habitat is present; or o Are inside the species range but no suitable summer habitat within the project action area; or o Are inside the species range and within suitable summer habitat, but have negative presence/absence (P/A) summer surveys,11 or o Are limited to wetland or stream protection activities associated with compensatory wetland/stream mitigation without any suitable habitat clearing (i.e. tree removal/trimming); or o Only involve slash pile burning.

and

• Bridge and/or structure removal, replacement, or maintenance activities with:

roosts; (2) radio telemetry biangulation/triangulation to estimate foraging areas; or (3) foraging areas with repeated use documented using acoustics. Documented roosting habitat is also considered as suitable summer habitat within 0.25 miles of documented roosts.

10 Documented travel corridor - for the purposes of this BA, we are considering documented corridors as that where Indiana bats and/or NLEB have actually been captured and tracked by using (1) radio telemetry; or (2) tree corridors located directly between documented roosting and foraging habitat.

11 P/A summer surveys conducted within the fall swarming/spring emergence home range of a documented Indiana bat hibernacula (contact local USFWS FO for appropriate distance from hibernacula) that result in a negative finding requires additional consultation with the local USFWS FO to determine if clearing of forested habitat is appropriate and/or if seasonal clearing restrictions are needed to avoid and minimize potential adverse effects on fall swarming and spring emerging Indiana bats.

o No signs of bats12 (bats, guano, etc.); or o A small number of bats (5) and suitable roosting habitat is maintained; or o A colony of bats, but the work does not disturb bats and suitable roosting habitat is maintained.

Please see Section 5.1, 5.2 and 5.3 for more information.

A sample of State DOTs and FHWA Division Offices estimated the annual acreage of cleared trees from edge of road surface to 300 ft. (Table 1).

• The average annual tree clearing per State within 0-300 ft. from edge of road surface is 320 acres.

• The average annual tree clearing per State within 0-100 ft. from edge of road surface is 140 acres.

• The average annual tree clearing within a State from 100 to 300 ft. from edge of road surface is 180 acres.

**The maximum acreage anticipated for any given project addressed in this programmatic range-wide consultation is approximately 20 acres (generally per 5-mile section of road/rail), unless approved by a local USFWS Field Office on case-by-case basis that the effects of the action fit in the programmatic.

Given the available literature on average home range sizes of individual Indiana bats (Menzel et al. 2005;

Sparks et al. 2005; Watrous et al. 2006; Kniowski and Gehrt 2014; Jachowski et al. 2014) of 205.1-827.8 acres, 20 acres represents 2.4-9.8% of a home range for an Indiana bat. Colonies have larger home ranges than individual bats with areas of overlapping core roosting/foraging areas and areas that do not overlap. This consultation is intended to cover projects with smaller impacts to any given maternity colony. This amount of tree removal is not expected to result in alterations to Indiana bat normal behavioral patterns for a given maternity colony in most instances. Some projects may exceed 20 acres if the action’s effects do not exceed the impacts as anticipated in this BO and are verified by a local USFWS Field Office.

Not all acres cleared will cause adverse effects for the following reasons:

• The acreage estimates are based on trees cleared. However, not all the trees cleared are suitable habitat.

• Some projects will clear trees within 0-100 ft. of the road or rail in the winter. FHWA estimates that 25% of the projects will implement winter tree clearing.

• Some of the projects will conduct bat surveys and bats will not be present.

• Some projects will assume species presence when the species is not there.

12 See User’s Guide Appendix D for bridge/abandoned structure assessment guidance.

The anticipated acreage of tree clearing (Table 1) will most likely occur across dozens of projects per state per year, with less than 5 acres of tree removal at many project locations.

Table 1. Estimated Average Annual Acres of Cleared Suitable Habitat

Distance from road/rail surface

Acres/State Acres/Indiana bat range (22 States)

Acres/NLEB range (37 States + D.C.)

0-100 ft. 140 total (105 in summer)

3,080 (2,310 in summer) 5,320 (3,990 in summer)

100-300 ft. 180 total (135 in summer)

3,960 (2,970 in summer) 6,840 (5,130 in summer)

TOTAL 0-300 ft. 320 (240 in summer) 7,040 (5,280 in summer) 12,160 (9,120 in summer)

New Road/Rail Construction

New construction activities can be associated with highway, railway, and transit projects that conform to the description of projects included in the proposed action (Section 2.2). Primary project objectives may include mobility and/or safety improvements. Examples of rail improvements include new siding track, a second mainline track, or a new rail maintenance access road. Examples of new roadway projects range between construction with large project footprints, such as new interchanges, new general purpose lanes, realignments, new road corridors, and bypass routes to smaller footprints such as reconstructing existing interchanges, minor realignments, bicycle/pedestrian facilities, and new sidewalks. Public transportation projects range from linear bus or rail alignments to fixed capital facilities such as parking lots, transit centers, rail stations parking garages, and vehicle maintenance and/or storage facilities. Widening or replacing aging bridges could occur for highway, railway, and transit projects.

Several activities and components of transportation are described within the new roadway, rail, and transit construction category, such as staging area establishment, culvert extension and installation, and drainage system installation and enhancements. Blasting may also be required when expanding the road, rail or transit corridor. Blasting is further described in the Slide Abatement section.

Unique components of highway construction include stormwater treatment facility construction, paving, painting, illumination, and signing. New roadway construction that is designed to increase mobility often occurs in urban areas. In these cases, very little undeveloped or undisturbed property is affected and most of the impacts would occur in the existing rights of way. New highway interchange construction could occur in areas that are highly developed or within areas that are becoming increasingly developed, but do not typically occur in rural areas. Unique components of transit construction includes construction of parking lots and garages; installation of electric power systems above and/or below the trackbed; rail signals and ancillary facilities, such as traction power substations; construction of bus and rail stations/terminals; and operating and maintenance facilities.

Transit projects tend to be constructed in urban areas with some projects reaching to the suburban fringe. Some new road construction is designed to improve the safety of the highway system. These projects include installation of sidewalks, slope flattening (which often require culvert extensions), and alignment modifications. Slope flattening and clear zone maintenance reduces hazards for automobiles that inadvertently leave the roadway. The clear zone is the total roadside border area that is available for safe, unobstructed use by errant vehicles. Slope flattening typically involves the placement and removal of fill material on existing cutslopes. Slopes are flattened to make them more traversable and improve site distance. Slope and ditch repair involves re-grading ditches and slopes to the current safety standards and design slopes. It may also include filling in or repairing sides of the ditches where necessary. Alignment modifications may include adding auxiliary lanes (e.g., truck climbing and acceleration lanes), channelization (new turn lanes), on- and off-ramp extensions, or realigning an intersection to improve the sight distance. If a new lane is added, an alignment modification of the adjacent road may be necessary to maintain continuity of the roadway.

Alignment modifications may also straighten curves or approaches to bridges. Alignment modifications could range in length from a few hundred ft. to a couple thousand ft. for curve realignments, or up to a few miles for realigning a major section of roadway. Truck lanes, turn lanes, and acceleration lanes typically average between 10 and 12 ft. wide. Sidewalk widths vary from 5 to 10 ft. wide, depending on jurisdiction and intended use. Road realignments and widenings often range between 0.25 and 5.0 miles in length. New interchanges and interchange improvements are also common safety projects.

Staging Areas

Staging areas are used for delivery and storage of construction materials and equipment, contractor office and storage trailers, and employee parking. These areas would be similar across road, rail, and transit projects and are typically contractor-selected and permitted. These areas are often fenced and located in close proximity to project construction. Temporary fencing prevents machinery and equipment, materials storage, and construction activity from intruding into adjacent properties, wetland and stream buffers, and shoreline areas. Office trailers, placed on temporary foundations, are often connected to available utilities including power, telephone, water, and sewer as needed. Connecting to these utilities may include installing poles for power lines and excavating trenches to place water and sewer pipelines. After construction is complete, staging areas are restored, if appropriate, and disconnected from any utilities.

Depending on site conditions, construction staging areas vary in size and may require vegetation clearing, grubbing, and grading or excavation to level the site and install drainage improvements.

Extensive alterations to establish a staging area, such as blasting, are extremely unlikely. Cleared vegetation is often hauled offsite, mulched and redistributed, or less commonly piled and burned onsite.

Excess material (e.g., soil, rock, debris) is disposed of at offsite facilities or reused as appropriate in construction. Conveyance systems for the movement of stormwater from a collection point to an outfall can consist of drainage pipes and stormwater facilities (such as ponds, vaults, and catch basins), using gravity or pumps to move the stormwater. Temporary driveways and access roads may be established from staging areas to the existing roadway network. Some staging areas may also be equipped with wheel washes that clean truck tires to reduce tracking dirt and dust offsite. Additional dust control is provided via water trucks and street sweepers.

Staging, fueling, and storage areas are typically located in areas that minimize potential effects to sensitive areas. Specialized best management practices (BMPs) are employed around concrete-handling areas to prevent water contamination from uncured cement entering water bodies or stormwater facilities. Temporary erosion and sediment control measures are implemented prior to ground disturbance on these sites. Examples include marking clearing limits, establishing construction access, controlling runoff flow rates (sediment ponds, check dams, etc.), installing sediment controls and soil stabilization (silt fence, coir blankets, temporary seeding), protecting slopes, protecting drain inlets, and preventing/containing contaminant spills.

Offsite Use Areas

Offsite use areas are necessary for rail and roadway projects and mainly consist of borrow material and waste disposal sites. Depending on the project, they can be owned by the State DOT or another public or private entity. They are typically permitted separately from the project and are contractor-selected.

Common activities associated with material sites include vegetation removal, excavation, rock crushing, and blasting.

Project specific locations include such areas as staging areas, access roads, borrow areas and waste disposal areas for project-related activities. These types of project-related activities may or may not occur within the project limits of construction and are often carried out by State DOT contractors.

For projects included in this programmatic consultation, State DOTs and their contractors: 1) shall adhere to all applicable Transportation Agency contract requirements; 2) comply with all State and federal laws concerning activities in those offsite areas; and 3) implement the applicable AMMs listed in this document, as appropriate. Contractors must provide documentation to State DOTs and Transportation Agencies when requested to demonstrate compliance with Federal contracting requirements and all State and federal laws.

If a new or existing staging or access area or a new or existing pit is used outside of a project’s construction limit, such offsite areas must also meet the requirements for coverage under the programmatic (e.g., site is >0.5 miles from any hibernacula AND project does not involve any clearing of suitable habitat OR there are negative summer P/A surveys13 available for the site). Projects that do not

13 P/A summer surveys conducted within the fall swarming/spring emergence home range of a documented Indiana bat hibernacula…