UPDATE: 22 May 2013 - Mitigation Issues

Mitigation Draft Stakeholder Message No. 1 of 2

Good Afternoon!

Where oh where is summer?  I sure hope it arrives soon, I'm certainly ready for it!  In the meantime, a lot has happened with the Kodiak Airport Runway Safety Area (RSA) projects since my last e-mail, and I want to update you on a few items.  

As I wrote about in a previous e-mail, we have been developing a mitigation plan for the unavoidable adverse impacts that could result from the project.  The Federal Aviation Administration (FAA) and Alaska Department of Transportation & Public Facilities (ADOT&PF) have been working with agencies, tribes and other interested parties on how to best mitigate these impacts from the proposed projects.  

Mitigation is a fairly complex and lengthy topic. Instead of trying to cover all of the details in a single message, I think breaking the topic up into two parts works best.  This letter will focus on providing background on mitigation and how it applies to this project.  In my next letter, I will continue with specific information on how we developed the specific mitigation plan for this project.

What is mitigation?
One of the definitions I believe best describes the full range of options for mitigation is from the Council on Environmental Quality.  Generally, “mitigation” can be provided in many forms, including:
1.        Avoiding the impact altogether by not taking a certain action or parts of an action.
2.        Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
3.        Rectifying the impact by repairing, rehabilitating or restoring the affected environment.
4.        Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
5.        Compensating for the impact by replacing or providing substitute resources or environments.

The descriptions above are “textbook” definitions. To connect these definitions to this project, here are some examples of mitigation measures that we have already incorporated into this project:

Avoiding: By selecting Runway 18/36 Alternative 7 as the preferred alternative for the RSA improvement, we avoided placement of any fill material near the mouth of the Buskin River.

Minimizing: Incorporating engineered materials arresting system (EMAS) for Runway 07/25 will allow us to reduce the amount of fill we would place in Womens Bay.

Rectifying the impact:  The Environmental Impact Statement (EIS) identifies several Best Management Practices that will be used to help restore the affected environment as much as possible.  One example of this is re-vegetating affected areas with native seed after construction is completed.

Compensating: This type of mitigation is usually reserved for unavoidable environmental impacts that cannot be avoided or lessened through other means.  


What unavoidable impacts need to be mitigated?
Even with the measures included to avoid, minimize, and repair the environmental impacts, there are still impacts that would be unavoidable.  The EIS identifies some unavoidable environmental impacts, including:
1.        Fill into marine waters resulting in a loss of “waters of the U.S.” (i.e. waters under the jurisdiction of the Army Corps of Engineers)
2.        Impacts to the Alaska Maritime National Wildlife Refuge
3.        Impacts to Essential Fish Habitat, including salmonids, which are covered under the Magnusson-Stevens Fisheries Conservation Act
4.        Negative effects on subsistence users, including minority and low-income populations as well as Alaska Native traditional and customary subsistence practices.

How can these unavoidable impacts be mitigated?
A “compensatory mitigation plan” describes the measures that will be taken to counteract impacts. The RSA Projects’ compensatory mitigation plan is currently under development.

The U.S. Army Corps of Engineers (ACOE) and the U.S. Environmental Protection Agency (EPA) have jointly issued the Compensatory Mitigation Rule. This Rule provides guidance on developing mitigation for projects, like this one, that require placement of fill into Waters of the U.S. The RSA Projects’ compensatory mitigation plan must comply with these rules for the ACOE to issue a permit that would allow fill to be placed into Womens Bay.

What are the objectives of the compensatory mitigation plan?
Simply stated, the objectives of the mitigation plan are to reduce the total severity of the projects’ adverse impacts.  To achieve those objectives, the mitigation plan’s goals include:
·        Improving or replacing habitat functions and values related to anadromous fisheries, migratory birds, and marine resources and habitats.
·        Replacing lost or affected subsistence opportunities and resources by providing access to or preservation of areas with subsistence resource values that have reasonable access from the Kodiak area (The Kodiak area is defined as Kodiak Island and Afognak Island).
·        Complying with the Compensatory Mitigation Rule

What mitigation types are examined under the Compensatory Mitigation Rule?
The Compensatory Mitigation Rule organizes several types of preferred mitigation options into a hierarchy: To follow the Rule, a permittee (in this case ADOT&PF) must attempt to mitigate its project in the following order:

This first preference requires the use of mitigation banks.  A mitigation bank is a wetland, stream, or other aquatic resource area that has been restored, established, enhanced, or preserved for the purpose of providing compensation for unavoidable environmental impacts.  

This type of mitigation is a type of “third-party” mitigation, where the permittee (ADOT&PF) pays a third-party by buying “credits” which are calculated based on the amount and type of resources affected.  The third-party uses the funds from these credits (combined with credits from other compensatory mitigation) to enhance, restore, or preserve the same types of resources that were affected through the existing mitigation bank.  A mitigation bank needs to be federally approved, and there are no federally approved mitigation banks in the Kodiak area (Kodiak Island or Afognak Island).  

Since mitigation banks cannot be used, the second preference is in-lieu fee programs. In-lieu fee programs occur when a permittee (ADOT&PF) provides funds to a third-party sponsor (generally a public agency or a non-profit).  The third-party sponsor then uses these funds to purchase lands that help enhance, restore or preserve the types of resources affected by the project within a local area (in this case Kodiak Island or Afognak Island).  

If approved mitigation banks or in-lieu fee programs are not available, the rule allows permittee-responsible mitigation, which in this case would mean ADOT&PF would complete a project restoration, establishment, enhancement, or preservation project of an area, instead of providing funds to a third-party.  For permittee-responsible projects, the Rule prefers the mitigation project to be “on-site” and “in-kind,” meaning the project would need to be near the RSA projects and mitigate for the same impacts described in the EIS.  In this case, ADOT&PF would also need to maintain the site permanently.

What‘s next?
We’re continuing to work on the compensatory mitigation plan, which I will update you on in my next letter, likely at the end of June or early July.  As always, if you have any questions or comments on the mitigation process or the Final EIS, please don’t hesitate to contact me at Leslie.Grey@faa.gov or by phone at (907)271-2851.

Sincerely, Leslie

Leslie A. Grey
Environmental Protection Specialist
FAA - Alaskan Region, Airports Division
907-271-5453

UPDATE: 2 July 2012 from Leslie Grey

Hello All,

I know all of you are familiar with the Kodiak Airport environmental impact statement (EIS):  Why we are engaged in that process, how we’ve developed alternatives, and the many environmental and cultural concerns associated with some of the options to improve runway safety areas (RSAs).  I’d like to use this Project Update to introduce you to another process evaluation we are conducting concurrent with the EIS to comply with the Alaska National Interest Lands Conservation Act, or ANILCA.

What is ANILCA?
When Congress passed ANILCA as Public Law 96-487 in 1980, more than 100 million acres of federal lands in Alaska were converted into “conservation system units”.  Conservation system units are public lands in Alaska that have been given special designations because of their natural or cultural resources, or other attributes.  Wilderness areas and national monuments in Alaska are conservation system units, as are national wildlife refuges.  Congress recognized that Alaskans, particularly those living in remote areas, depend on utilities and means of transportation that must often extend across great distances. Air travel is often the only option. To meet the transportation needs unique to Alaska, including socioeconomic and public safety needs, Congress included some exceptions in ANILCA that establish a decision-making process to allow Alaskans to develop transportation and utility systems in conservation system units.
What exception in ANILCA may be relevant to the Kodiak Airport?
One portion of ANILCA, commonly referred to by its place in the law, “Title XI,” addresses whether and how transportation and utility systems can access and cross so-called “conservation system units.”  The submerged lands around the Kodiak Airport are within a conservation system unit, the Alaska Maritime National Wildlife Refuge. The Alaska Maritime National Wildlife Refuge, encompassing much of the Aleutian Chain and more than 2,500 islands, cliffs, headlands and other lands and marine waters from the Chukchi Sea to Southeastern Alaska, qualifies under ANILCA as a conservation system unit.  In fact, the Maritime Refuge was established by ANILCA when 11 existing refuges were combined with other lands and waters to form the largest unit within the National Wildlife Refuge system.
Does ANILCA Title XI Apply to the Kodiak RSA Improvement Projects?

Yes, Title XI of ANILCA applies to the proposed RSA improvements, and here’s why.  First, the runway safety areas are considered parts of a transportation system, in this case the Kodiak Airport that provides access for people and freight to and from Kodiak Island.  Second, the RSA improvements would cross into a conservation system unit, as the submerged lands offshore from the Airport in Chiniak Bay are within the boundaries of the Maritime Refuge.  
So ANILCA Title XI Applies to the RSA Improvement Projects - What’s the Catch?
Really, there is no catch, but it does add another layer of review and different approvals for the RSA projects to be constructed and used. The applicant (ADOT&PF) must submit a transportation and utility systems application to federal agencies with jurisdiction (i.e. permitting authority), where without the permit, the transportation and utility systems cannot be established or operated.  I guess there is a twist, though. Normally, for the Maritime Refuge, the U.S. Fish and Wildlife Service would be that agency with primary jurisdiction.  However, the portions of the Maritime Refuge immediately offshore from the Airport were withdrawn for defense purposes, in various installments through Executive Orders and Public Law Orders, starting about 1940.  I’ll save the details of those actions for the EIS, but the end result is that the U.S. Coast Guard also has jurisdiction over the Refuge lands that would be accessed by the RSA improvements and would also have to decide whether to approve or deny a right of way permit.  The U.S. Fish and Wildlife Service still have an important role to play, however, since they have management responsibility for lands within the Refuge and also resources within the Refuge (including some marine mammals, migratory birds, and threatened or endangered species). In addition, the FAA, as lead agency of the EIS and the agency that would fund the RSA improvements, also would be involved in the Title XI decision-making process.  All federal permitting agencies will be required to review the application for completeness, develop a decision on the application with detailed findings, and if appropriate, identify appropriate conservation measures to protect those resources.  

What are the Steps to Conform with ANILCA Title XI?

For the RSA improvement projects to be allowed in the Maritime Refuge, a number of findings and statements must be made by the agencies tasked with decision-making responsibilities.  For example, they must find there is no economically feasible or prudent alternative to routing the transportation system into the Refuge, and if there is not, whether there are other routes that would result in fewer or less severe impacts to the Refuge.  The agencies must also make detailed findings concerning the short and long term social, economic and environmental impacts of national, State or local significance, including impacts on fish and wildlife and their habitat and on rural, traditional lifestyles. If these and other findings sound familiar they should, because all are consistent with the types of analysis and conclusions that must be included within an environmental impact statement.    
Therefore, concurrent with the Kodiak Airport Draft EIS, Alaska DOT&PF will be submitting an application to the Coast Guard, USFWS, USACOE and FAA under ANILCA Title XI. Supporting documentation for the application will consist of the Draft EIS, prepared by FAA and addressing all of the information needed by the agencies with permitting authority to evaluate the application and develop the necessary findings and statements.  

Summary and Schedule

For some time FAA has been preparing an environmental impact statement considering impacts associated with runway safety area improvements at Kodiak Airport.  Our analysis of possible impacts caused by the proposed RSA improvements is almost complete, and I hope to publish for agency and public review a Draft EIS, including the ANILCA Title XI application and preliminary analysis, sometime later this summer.  The FAA will be providing the public, agencies, and tribes and other interested parties 60 days to review the DEIS.  The FAA, Coast Guard, USACOE and USFWS will review the Title XI application, and inform ADOT&PF in writing whether it contains the information required for evaluation under ANILCA (ANILCA § 1104 (d)).  During our EIS public comment period, we will also hold public hearings concerning the ANILCA application in both Alaska and Washington DC.  
I hope this introduction to ANILCA Title XI has been informative.  Please don’t hesitate to send an e-mail (leslie.grey@faa.gov) or call me at 907-271-5453.  Best regards, Leslie

Leslie A. Grey
Environmental Protection Specialist
FAA - Alaskan Region, Airports Division
907-271-5453