Biological Assessments (BA) evaluate how proposed actions will impact federally listed threatened or endangered species. They are used to determine whether KYTC requires a formal consultation or conference with the USFWS. A BA is performed once a KYTC or consultant biologist has determined that: 1) one or more federally endangered to threatened species may potentially be present in the project area, and 2) suitable habitat for those species is located within the project area.

The BA examines all locations that may be affected by the project’s physical, chemical, and biotic impacts as well as its direct, indirect, and cumulative effects. The PM defines which areas should be evaluated during a BA, which typically encompass an area larger than the project’s physical footprint (the area within the disturb limits). In some cases, the entire proposed ROW is studied.

Prequalified environmental consultants or Division of Environmental Analysis SMEs conduct BAs. They consist of literature review and early coordination with resource agencies, field investigations, and reporting possible state and federally listed species that may be present within the action area. The BA builds on prior project work, including the Habitat Assessment and Ecological Base Study.

If a BA identifies the presence of federally threatened or endangered species in the project area, avoidance and minimization strategies are recommended to address potential impacts. One of three findings is assigned to each species or critical habitat studied:

• • No effect,
  • May affect, not likely to adversely affect, or
  • May affect, likely to adversely affect.

FHWA considers determinations of effect valid for a period of five years from the date of field investigations. Unless the project scope changes anticipated impacts, other findings within the document remain valid.

The DEC coordinates review of the BA report with the PM. Project commitments from the final report are captured and recorded in the Communicating All Promises (CAP) section of the Six Year Plan database.

More detailed information on BAs can be found in the Environmental Analysis Guidance Manual (EA-806).

KYTC must obtain appropriate permits or certifications when the project impacts wetlands, streams, lakes, and/or rivers, regardless of state or federal funding type. The Environmental Analysis Guidance Manual (EA-1101) includes a complete list of applicable laws, statutes, regulations, executive orders, and policy. 

Early in the project development process, the Division of Environmental Analysis SME, with the help of the PDT, must identify impacts to waters or their significant nexus. The magnitude of the project’s impacts dictates what type of permit(s) is required. It is imperative that the permitting process begin as early as possible to prevent it from entering the critical path, which can result in project delays. 

The USACE assumes permitting authority under the Rivers and Harbors Act. According to Section 404 of the Clean Water Act (CWA), the Environmental Protection Agency (EPA) can delegate authority over the Waters of the U.S. to the USACE, although the EPA retains veto power. The USFWS and state water quality agencies have important roles as well. Section 401 of the CWA mandates that applicants obtain certification from the state stipulating that a proposed project meets the state’s water quality standards. A Section 401 Water Quality Certification (WQC) confirms that activities authorized under Section 404 of the CWA or Sections 9 and 10 of the Rivers and Harbors Act – both administered by the USACE – will not violate Kentucky’s water quality standards (401 KAR 10:031).

Pursuant to Section 404 of the CWA, the USACE issues general and Individual Permits (IP). General permits are issued on a nationwide, regional, or statewide basis for specific project categories. They are reserved for activities that have minimal adverse effects. For example, Nationwide Permit 3 authorizes maintenance activities that repair, rehabilitate, or replace any previously authorized, currently serviceable structure or fill, or any currently serviceable structure or fill authorized under 33 CFR 330.3. If the project’s impacts fall below notification requirements (BNR) for a specific nationwide permit, work may proceed without notifying the USACE. KYTC has an internal process for documenting BNR determinations (see EA-1104 for Section 404 Nationwide Permits & Below Notification Requirements).

IPs are issued as a Letter of Permission (LOP) or standard permit for a single project that has potentially significant impacts. The LOP streamlines authorization for transportation projects that will minimally impact Waters of the U.S. They require an assessment of stream and wetland resources that may be impacted by the project (see EA-1105 for criteria projects need to meet for an LOP). For the standard IP application package, the PM provides the DEC with detailed project plans and measurements as well as relevant U.S. Geological Survey (USGS) topographic maps, aerial photographs, and other mapping tools (at a minimum). Once issued, all IPs are generally valid for five years. If authorized construction impacts to Waters of the U.S. are not completed within the permit’s authorized term, KYTC must request a permit renewal.