# Presentation: 599117

## Conservation Banking and eligibility

- Federal aid funds can participate in actual costs of mitigation for impacts which are due to a federally funded highway project, current or past
- Banked areas could include uplands,  habitats for TE species, wetlands, and other waters of the United States.
- Off-site banking could be a mitigation alternative of choice in situations where ecosystems or habitats of federally-protected species are being impacted

## Past Guidance on eligibility

- Costs related to mitigation of impacts to natural habitats are eligible for Federal-aid participation under the authority established in 23 U.S.C. &sect 133 (b)(1). Costs eligible  include land acquisition; measures necessary to establish mitigation, such as revegetation, site preparation, fencing, irrigation or water control structures, pest management, litter removal, access control, fire control; and mitigation performance monitoring.

## Mitigation Establishment

- Site establishment is complete when construction activities are completed and approved, or when cooperating agencies agree that the project mitigation goals have been met.
- Establishment periods may be as short as 1-3 years on some sites, or up to 20 years on slow-maturing sites.
- the establishment period may be extended if the FHWA finds that extension would result in the successful completion of the mitigation goals.

## In Lieu Fees

- The TEA-21 implicitly allows participation with Federal aid funds in ILF programs through the following language:
- " . . . . participation in natural habitat and wetland mitigation banks, contributions to statewide and regional efforts to conserve, restore, enhance, and create natural habitat and wetland, and development of regional natural habitat and wetland conservation and mitigation plans, . . . . " (Section 1106; 23 U. S. Code 103 (b)(6)(M).

## Eligibility

- the NHS and STP allow States to use Federal-aid funds for wetlands mitigation activities. 23 U.S.C. 103(b)(6)(m) and 133(b)(11).
- efforts to conserve, restore, enhance, and create wetlands.
- concurrent with or in advance of project construction.
- Nothing in the language of sections 103(b)(6)(M) or 133(b)(11) forbids States from doing so after a project has been completed. No prohibition is to be implied.

## Eligibility

- Federal aid is a cost reimbursement program
- Actual costs are to be reimbursed
- Question regarding in lieu fees – when the fee is pre-established – is the cost a reimbursement
- Does the state get reimbursed when the fee is paid or when the mitigation is done?

## Eligibility

- (STP) funds eligible for ``mitigation of damage to wildlife, habitat, and ecosystems caused by a transportation project funded under this title.'' Under 23 U.S.C. 101, the term ``project'' means ``an undertaking to construct a particular portion of a highway, or if the context so implies, the particular portion of a highway so constructed.'' This definition ...encompass[es] ... any highway that has been constructed using title 23, U.S. Code, funds.

## Eligiblity

- ...Contributions to statewide and regional efforts to conserve, restore, enhance and create wetlands or natural habitats.
- Development of statewide and regional wetlands conservation plans,
- Contributions to these efforts in advance of project construction only if consistent with all applicable requirements of Federal law and regulations and State transportation planning processes.

## Eligibility

- NHS
- STP
- Bridge
- Enhancements
- Minimum Guarantee