Highway Knowledge Portal

Search for articles or browse our knowledge portal by topic.

Biological Assessment

Biological Assessment

Project Flowchart for this Article

09 HKP Time Management - Final Design Phase v2

1. Biological Assessment

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).

Red Flag

When a BA results in a finding of may affect, likely to adversely affect for any federally endangered species, the Division of Environmental Analysis must coordinate with the lead federal agency to begin a formal Section 7 consultation with the USFWS. A formal consultation culminates in a Biological Opinion (BO) prepared by the USFWS that is completed within 135 days of the formal consultation being initiated. More realistically, however, and depending on project complexity and severity of impacts, the consultation process may take from 6 to 18 months. If the USFWS issues a no‐jeopardy BO, the project may continue as planned, under certain conditions. If the proposed action will jeopardize a species, the federal government may propose alternatives, require additional mitigation measures, or deny the project. The BO identifies reasonable and prudent measures that can be incorporated into the project to minimize potential harm to affected species. It also describes terms and conditions that must be followed to ensure those measures are implemented properly. A BO does not expire unless the project scope is altered or a change in species status occurs.

2. Environmental Permitting

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.

Red Flag

For bridge construction or modification within a navigable waterway that requires a USCG Bridge Permit, consult the Structural Design Guidance Manual (SD‐204).

KYTC must receive prior approval from the TVA for activities that affect TVA waters.

If the project has multiple impacts but each impact falls BNR, the USACE is authorized to treat project impacts cumulatively, which can result in an overall impact that exceeds notification thresholds. Whether cumulative impacts result in a project that exceeds notification thresholds is solely at the discretion of the USACE. If there is potential for cumulative impacts, consult with the Division of Environmental Analysis SME to determine whether the USACE should be contacted for guidance.

As with any environmental clearance, altering the project scope could invalidate the existing agreement (irrespective of whether the impacts are perceived to increase or decrease). Thus, if changes in project scope will change how Waters of the U.S. will be impacted, KYTC may need to submit a new individual permit application to the USACE.

Time Management for Highway Project Development Knowledge Book:

Access the complete Knowledge Book here:  Time Managment Knowledge Book

Next Article: Removal of Improvements and Asbestos

Previous Article: Condemnation

Table of Contents