Memorandum of Understanding
Federal Highway Administration
South Dakota Department of Transportation
South Dakota Department of Game, Fish and Parks
U. S. Fish and Wildlife Service
This agreement establishes a basis for replacement of wetlands under private ownership and those with public interest that are impacted by highway construction. It also establishes procedures for the coordination and development of a Wetland Accounting System (WAS). Similarly, guidelines and procedures which describe replacement criteria are set forth.
Fish and Wildlife Coordination Act, 16 USC 661-666; 48 Statute 401 Statute 401.
National Environmental Policy Act of 1969 (NEPA), 42 USC 4321-4347; 83 Statute 852.
Executive Order on Wetlands (11990).
Endangered Species Act, 1973, 16 USC 1531-1543; 87 Statute 884.
Surface Transportation and Uniform Relocation Assistance Act of 1987
National Wildlife Refuge System Administration Act, 16 U.S.C. 619dd.
Clean Water Act (33 U.S.C. 1344)
Federal Aid and Wildlife Restoration Act (50 Statute 917) Federal Aid in Sport Fish Restoration Act (64 Statute 430)
Wetlands under public interest (Federal and State fee title or easement tracts) will be subject to existing policy and guidelines. The U.S. Fish and Wildlife Service (Service), and/or the South Dakota Department of Game, Fish and Parks (SDGF&P) must determine if the proposed action is compatible for the purposes for which the area was established. If compatible or made compatible, the SDGF&P or Service will grant rights-of-way for the highway project. Additional guidelines pertinent to this matter are found at 50 CFR Part 29. For Federal Aid wetland areas, basic policy and guidelines are provided at 50 CFR Part 80.
All other wetlands are considered to be under private interest and will be subject to existing policies and to the mitigation guidelines as described in this memo of understanding (MOU).
The Council on Environmental Quality has defined mitigation in its regulations at 40 CFR 1508.20.
IV. GENERAL PROCEDURES
For those projects that involve wetlands, the South Dakota Department of Transportation (Department) will notify the Service and SDGF&P (during or prior to completion of preliminary design) of the proposed construction and provide location maps, project drawings, and/or photographs, as appropriate. The Service and/or SDGF&P will identify the location of easement and/or fee title lands, the potential for wetland encroachment, and the significance of project effects on fish and wildlife resources. The Department will consider those measures necessary to minimize adverse impacts with emphasis on avoiding wetland encroachments, to the maximum extent possible, and that are consistent with other social and economic factors to be incorporated into the project design.
After notification of the proposed construction and during the preliminary design phase, the Service, the SDGF&P and the Department will explore the mitigation options available within the project vicinity. (See Basis for Exchange, Exhibit 1.) A tentative agreement should be reached in order to facilitate the preliminary design phase and initiate the appropriate studies.
Upon completion of the preliminary design phase, a more precise tabulation of the wetland acreage and number of wetlands affected will be available. A proposed mitigation plan indicating location, number of wetland basins created or improved, by acreage will also be available for review. Service and SDGF&P biologists, to the maximum extent possible, will assist Department personnel in locating and designing the mitigation sites and management plans. Following the finalization and field review of the mitigation plan, the Service and/or SDGF&P will advise the Department of any additional comments prior to final design approval.
Some Department projects may provide an excellent opportunity to construct wetland basins, e.g., borrow areas when wetlands are not affected. The Service and SDGF&P will be consulted to determine their applicability as replacement during the preliminary design phase. If acceptable, these developments will constitute suitable replacement and apply to future wetland losses along other projects.
Wetland acreage filled or drained as a result of project construction will be subject to a number of habitat exchange options, as mutually agreed to by signatories. All excess lands owned by the Department are eligible for consideration as mitigation. These excess lands will be evaluated by signatories for WAS purposes prior to Department disposition. Mitigation can be achieved through the construction of wetlands of equal or greater value to those lost, by the restoration of previously drained wetlands, or by improving or enhancing existing wetlands and/or upland habitat through various management options.
Coordination by the Department with the SDGF&P and the Service's Wetlands Management District offices in South Dakota will be essential throughout the preliminary design phase of project development. Wetland encroachments in easement and fee title lands will require the Department to make a formal application for a permit, 4F determination, certificate of compatibility, or letter of permission as the case may be. This request shall contain the acreage of easement/fee title wetlands affected, as well as the acreage of replacement wetlands or uplands. If it is impractical for replacement along the project, this acreage will be recorded for replacement at a future date. Where the Department has acceptable replacement lands, these will apply according to Exhibit I, "Basis of Exchange" options.
While acceptance and implementation of the terms and conditions of this Memorandum of Understanding by the signatories will not preempt their responsibility of assuring compliance with Section 404(b)(1) guidelines of the Clean Water Act, it is the intent of this MOU to expedite the 404 permit process. When needed to assure compliance, the Department will seek technical assistance from the S.D. Department of Water and Natural Resources (DWNR) and the Corps of Engineers. All means of avoiding or minimizing impacts must be fully explored during project development and a determination must be made that on-site mitigation alternatives are not practical or not available before the use of the WAS may be considered.
It is agreed that, in those situations when damage to wetlands cannot be avoided, the first objective will be to replace wetland losses in kind acre for acre to the degree possible subject to analysis under the habitat exchange options. The second objective will be to provide mitigation within the watershed; third, within the biotic region; and lastly, outside the biotic region. Wetland mitigation may be from credits in the WAS. Credits should have a period of effectiveness equal to or greater than the life of the project impacts. It is further agreed that the Department will be designated responsible for maintaining the credit/debit account and for keeping the other participants informed of the WAS status. A credit balance will be maintained to the maximum extent practicable. WAS areas will be reevaluated by the signatories prior to use in mitigation. Wetlands in the WAS may be transferred through fee title or lease easement agreements to SDGF&P or the Service for management purposes.
V. EFFECTIVE DATE AND TERMINATION
This agreement shall be in effect upon the last signature date and remain so until such time as any of the parties withdraw from full participation. Withdrawal from the agreement shall be deemed to occur 30 days after written notice is provided to all parties.
One year from the effective date, this MOU may be reviewed and modified if necessary, when mutually agreed to by all parties.
October 12, 1988
Oct. 14, 1988