[Federal Register Volume 81, Number 45 (Tuesday, March 8, 2016)]
[Notices]
[Pages 12379-12403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05142]
[[Page 12379]]
Vol. 81
Tuesday,
No. 45
March 8, 2016
Part IV
Department of the Interior
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Fish and Wildlife Service
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Proposed Revisions to the U.S. Fish and Wildlife Service Mitigation
Policy; Notice
Federal Register / Vol. 81 , No. 45 / Tuesday, March 8, 2016 /
Notices
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[Docket No. FWS-HQ-ES-2015-0126; FXHC11220900000-156-FF09E33000]
Proposed Revisions to the U.S. Fish and Wildlife Service
Mitigation Policy
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Announcement of draft policy; request for public comment.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce
proposed revisions to our Mitigation Policy, which has guided Service
recommendations on mitigating the adverse impacts of land and water
developments on fish, wildlife, plants, and their habitats since 1981.
The revisions are motivated by changes in conservation challenges and
practices since 1981, including accelerating loss of habitats, effects
of climate change, and advances in conservation science. The revised
policy provides a framework for applying a landscape-scale approach to
achieve, through application of the mitigation hierarchy, a net gain in
conservation outcomes, or at a minimum, no net loss of resources and
their values, services, and functions resulting from proposed actions.
The primary intent of the policy is to apply mitigation in a strategic
manner that ensures an effective linkage with conservation strategies
at appropriate landscape scales. We request comments, information, and
recommendations from governmental agencies, Indian Tribes, the
scientific community, industry groups, environmental interest groups,
and any other interested parties.
DATES: We will accept comments from all interested parties until May 9,
2016. Please note that if you are using the Federal eRulemaking Portal
(see ADDRESSES below), the deadline for submitting an electronic
comment is 11:59 p.m. Eastern Standard Time on this date.
ADDRESSES: Document Review: The draft policy is available for review at
http://www.regulations.gov, under docket number FWS-HQ-ES-2015-0126.
General Comments: You may submit comments by one of the following
methods:
Federal eRulemaking Portal: http://www.regulations.gov. In
the Search box, enter the Docket number for the proposed policy, which
is FWS-HQ-ES-2015-0126. You may enter a comment by clicking on the
``Comment Now!'' button. Please ensure that you have found the correct
document before submitting your comment.
U.S. mail or hand delivery: Public Comments Processing,
Attn: Docket No. FWS-HQ-ES-2015-0126; Division of Policy, Performance
and Management; U.S. Fish and Wildlife Service; 5275 Leesburg Pike,
ABHC-PPM; Falls Church, VA 22041-3803.
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Request for Information below for more information).
FOR FURTHER INFORMATION CONTACT: Jason Miller, U.S. Fish and Wildlife
Service, Branch of Conservation Planning Assistance, 5275 Leesburg
Pike, Falls Church, VA 22041-3803, telephone 703-358-1756.
SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service
(Service), announce proposed revisions to our Mitigation Policy
(January 23, 1981; 46 FR 7644-7663), which has guided Service
recommendations on mitigating the adverse impacts of land and water
developments on fish, wildlife, plants, and their habitats since 1981.
The revisions are motivated by changes in conservation challenges and
practices since 1981, including accelerating loss of habitats, effects
of climate change, and advances in conservation science. The revised
policy provides a framework for applying a landscape-scale approach to
achieve, through application of the mitigation hierarchy, a net gain in
conservation outcomes, or at a minimum, no net loss of resources and
their values, services, and functions resulting from proposed actions.
The primary intent of the policy is to apply mitigation in a strategic
manner that ensures an effective linkage with conservation strategies
at appropriate landscape scales.
The revised policy integrates all authorities that allow the
Service to recommend or require mitigation of impacts to Federal trust
fish and wildlife resources, and other resources identified in statute,
during development processes. It is intended to serve as a single
umbrella policy under which the Service may issue more detailed
policies or guidance documents covering specific activities in the
future.
Background
The U.S. Fish and Wildlife Service (Service) is revising its 1981
Mitigation Policy (1981 Policy), which has guided Service
recommendations on mitigating the adverse impacts of land and water
developments on fish, wildlife, plants, and their habitats, and uses
thereof since 1981. The primary intent of the policy is to apply
mitigation in a strategic manner that ensures an effective linkage with
conservation strategies at appropriate landscape scales, consistent
with the Presidential Memorandum on Mitigating Impacts on Natural
Resources from Development and Encouraging Related Private Investment
(November 3, 2015), the Secretary of the Interior's Order 3330 entitled
``Improving Mitigation Policies and Practices of the Department of the
Interior'' (October 31, 2013), and the Departmental Manual Chapter (600
DM 6) on Implementing Mitigation at the Landscape-scale (October 23,
2015). Within this context, our revisions of the 1981 Policy: (a)
Broaden its scope to address all resources for which the Service has
authorities to recommend or require mitigation for impacts to
resources; and (b) provide an updated framework for applying mitigation
measures that will maximize their effectiveness at multiple geographic
scales.
By memorandum, the President directed all Federal agencies that
manage natural resources to avoid and minimize damage to natural
resources and to effectively offset remaining impacts, consistent with
the principles declared in the memorandum and existing statutory
authority. Under the memorandum, all Federal mitigation policies shall
clearly set a net benefit goal or, at minimum, a no net loss goal for
natural resources, wherever doing so is allowed by existing statutory
authority and is consistent with agency mission and established natural
resource objectives. The policy proposed herein implements the
President's directions for the Service.
Secretarial Order 3330 established a Department-wide mitigation
strategy to ensure consistency and efficiency in the review and
permitting of infrastructure development projects and in conserving
natural and cultural resources. The Order charged the Department's
Energy and Climate Change Task Force with developing a report that
addresses how to best implement consistent, Department-wide mitigation
practices and strategies. The report of the Task Force, ``A Strategy
for Improving the Mitigation Policies and Practices of the Department
of the Interior'' (April 2014), describes guiding principles for
mitigation to improve process efficiency, including the use of
landscape-scale approaches rather than project-by-project or single-
resource mitigation approaches. This revision of the Service's
Mitigation Policy complies with a deliverable identified in the
Strategy that seeks to implement the guiding principles set forth in
the
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Secretary's Order, the corresponding Strategy, and subsequent 600 DM 6.
In 600 DM 6, the Department of the Interior established policy
intended to improve permitting processes and help achieve beneficial
outcomes for project proponents, impacted communities, and the
environment. By implementing this Manual Chapter, the Department will:
(a) Effectively mitigate impacts to Department-managed resources
and their values, services, and functions;
(b) provide project developers with added predictability and
efficient and timely environmental reviews;
(c) improve the resilience of resources in the face of climate
change;
(d) encourage strategic conservation investments in lands and other
resources; increase compensatory mitigation effectiveness, durability,
transparency, and consistency; and
(e) better utilize mitigation measures to help achieve Departmental
goals.
The policy proposed herein implements the Department's directions
for the Service.
As with the 1981 Policy, the Service intends, with this revision,
to conserve, protect, and enhance fish, wildlife, plants, and their
habitats for future generations. Effective mitigation is a powerful
tool for furthering this mission.
Discussion
The Service's motivations for revising the 1981 Policy include:
Accelerating loss, including degradation and
fragmentation, of habitats and subsequent loss of ecosystem function
since 1981;
Threats that were not fully evident in 1981, such as
effects of climate change, the spread of invasive species, and
outbreaks of epizootic diseases, are now challenging the Service's
conservation mission;
The science of fish and wildlife conservation has
substantially advanced in the past three decades;
The Federal statutory, regulatory, and policy context of
fish and wildlife conservation has substantially changed since the 1981
Policy; and
A need to clarify the Service's definition and usage of
mitigation in various contexts, including the conservation of species
listed as threatened or endangered under the Endangered Species Act,
which was expressly excluded from the 1981 Policy.
Mitigation Defined
In the context of impacts to environmental resources (including
their values, services, and functions) resulting from proposed actions,
``mitigation'' is a general label for measures that a proponent takes
to avoid, minimize, and compensate for such impacts. The 1981 Policy
adopted the definition of mitigation in the Council on Environmental
Quality (CEQ) National Environmental Policy Act (NEPA) regulations (40
CFR 1508.20). The CEQ mitigation definition remains unchanged since
codification in 1978 and states that ``Mitigation includes:
Avoiding the impact altogether by not taking a certain
action or parts of an action;
minimizing impacts by limiting the degree or magnitude of
the action and its implementation;
rectifying the impact by repairing, rehabilitating, or
restoring the affected environment;
reducing or eliminating the impact over time by
preservation and maintenance operations during the life of the action;
and
compensating for the impact by replacing or providing
substitute resources or environments.''
This definition is adopted in this revised policy, and the use of
its components in various contexts is clarified. In 600 DM 6, the
Department of the Interior states that mitigation, as enumerated by
CEQ, is compatible with Departmental policy; however, as a practical
matter, the mitigation elements are categorized into three general
types that form a sequence: Avoidance, minimization, and compensatory
mitigation for remaining unavoidable (also known as residual) impacts.
The 1981 Policy further stated that the Service considers the sequence
of the CEQ mitigation definition elements to represent the desirable
sequence of steps in the mitigation planning process. The Service
generally affirms this hierarchical approach in this policy. We
advocate first avoiding and then minimizing impacts that critically
impair our ability to achieve conservation objectives for affected
resources. We also provide guidance that recognizes how action- and
resource-specific circumstances may warrant departures from the
preferred mitigation sequence; for example, as when impacts to a
species may occur at a location that is not critical to achieving the
conservation objectives for that species, or when current conditions
are likely to change substantially due to the effects of a changing
climate. In such circumstances, relying more on compensating for the
impacts at another location may more effectively serve the conservation
objectives for the affected resources. This policy provides a logical
framework for the Service to consistently make such choices.
Scope of the Revised Mitigation Policy
The Service's mission is to conserve, protect, and enhance fish,
wildlife, and plants, and their habitats for the continuing benefit of
the American people. This mission includes a responsibility to make
mitigation recommendations and requirements during the review of
actions based on numerous authorities related to specific covered plant
and animal species, habitats, and broader ecological functions. Our
authority to engage actions that may affect these resources extends to
all U.S. States and territories, on public and on private lands. This
unique standing necessitates that we clarify our integrated interests
and expectations when seeking mitigation for impacts to fish, wildlife,
plants, and their habitats.
This policy serves as over-arching Service guidance applicable to
all actions for which the Service has specific authority to recommend
or require the mitigation of impacts to fish, wildlife, plants, and
their habitats. As necessary and as budgetary resources permit, we
intend to adapt or develop Service program-specific policies,
handbooks, and guidance documents, consistent with the applicable
statutes, to integrate the spirit and intent of this policy.
New Threats and New Science
Since the publication of the Service's 1981 Policy, land use
changes in the United States have reduced the habitats available to
fish and wildlife. By 1982, approximately 71 million acres of the lower
48 States had already been developed. Between 1982 and 2012, the
American people developed an additional 44 million acres for a total of
114 million acres developed. Of all historic land development in the
United States, excluding Alaska, over 37 percent has occurred since
1982. Much of this newly developed land had been existing habitats,
including 17 million acres converted from forests.
A projection that the U.S. population will increase from 310
million to 439 million between 2010 and 2050 suggests that land
conversion trends like these will continue. In that period, development
in the residential housing sector alone may add 52 million (42% more)
units, plus 37 million replacement units. By 2060, a loss of up to 38
million acres (an area the size of Florida) of forest habitats alone is
possible. Attendant pressures on remaining habitats will also increase
fragmentation, isolation, and
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degradation through myriad indirect effects. The loss of ecological
function will radiate beyond the extent of direct habitat losses. Given
these projections, the near-future challenges for conserving species
and habitats are daunting. As more lands and waters are developed for
human uses, it is incumbent on the Service to help project proponents
successfully and strategically mitigate impacts to fish and wildlife
and prevent systemic losses of ecological function.
Accelerating climate change is resulting in impacts that pose a
significant challenge to conserving species, habitat, and ecosystem
functions. Climatic changes can have direct and indirect effects on
species abundance and distribution, and may exacerbate the effects of
other stressors, such as habitat fragmentation and diseases. The
conservation of habitats within ecologically functioning landscapes is
essential to sustaining fish, wildlife, and plant populations and
improving their resilience in the face of climate change impacts, new
diseases, invasive species, habitat loss, and other threats. Therefore,
this policy emphasizes the integration of mitigation planning with a
landscape approach to conservation.
Over the past 30 years, the concepts of adaptive management
(resource management decision-making under uncertainty) have gained
general acceptance as the preferred science-based approach to
conservation. Adaptive management is an iterative process that
involves: (a) Formulating alternative actions to meet measurable
objectives; (b) predicting the outcomes of alternatives based on
current knowledge; (c) conducting research that tests the assumptions
underlying those predictions; (d) implementing alternatives; (e)
monitoring the results; and (f) using the research and monitoring
results to improve knowledge and adjust actions and objectives
accordingly. Adaptive management further serves the need of most
natural resources managers and policy makers to provide accountability
for the outcomes of their efforts, i.e., progress toward achieving
defensible and transparent objectives.
Working with many partners, the Service is increasingly applying
the principles of adaptive management in a landscape approach to
conservation. Mitigating the impacts of actions for which the Service
has advisory or regulatory authorities continues to play a significant
role in accomplishing our conservation mission under this approach. Our
aim with this policy is to align mitigation requirements and
recommendations with conservation strategies at appropriate landscape
scales so that mitigation most effectively contributes to achieving the
conservation objectives we are pursuing with our partners, and to align
mitigation recommendations and requirements with Secretarial Order 3330
and 600 DM.
A Focus on Habitat Conservation
Although many Service authorities pertain to specific taxa or
groups of species, most specifically recognize that these resources
rely on functional ecosystems to survive and persist for the continuing
benefit of the American people. Mitigation is a powerful tool for
sustaining species and the habitats upon which they depend; therefore,
the Service's mitigation policy must effectively deal with impacts to
the ecosystem functions, properties, and components that sustain fish,
wildlife, plants, and their habitats. The 1981 Policy focused on
habitat: ``the area which provides direct support for a given species,
population, or community.'' It defined criteria for assigning the
habitats of project-specific evaluation species to one of four resource
categories, using a two-factor framework based on the relative scarcity
of the affected habitat type and its suitability for the evaluation
species, with mitigation guidelines for each category. We maintain a
focus on habitats in this policy by using evaluation species and a
valuation framework for their affected habitats, because habitat
conservation is still generally the best means of achieving
conservation objectives for species. However, our revisions of the
evaluation species and habitat valuation concepts are intended to
address more explicitly the landscape context of species and habitat
conservation to improve mitigation effectiveness and efficiency. In
addition, we recognize that some situations may require the inclusion
of measures that are not habitat based to address certain species-
specific impacts.
Applicability to the Endangered Species Act
The Service's 1981 mitigation policy did not apply to the
conservation of species listed as threatened or endangered under the
Endangered Species Act (ESA). Excluding listed species from the policy
was based on: (a) A recognition that all Federal actions that could
affect listed species and designated critical habitats must comply with
the consultation provisions of section 7 of the ESA; and (b) a position
that ``the traditional concept of mitigation'' did not apply to such
actions. This policy supersedes this exclusion for the Service.
Mitigation, as broadly defined in this policy, is an essential
component of achieving the overarching purpose of the ESA, which is to
conserve listed species and the ecosystems upon which they depend.
Effective mitigation can contribute to the recovery of listed species
or prevent further declines in populations and habitat resources that
would otherwise slow or impede recovery of listed species.
The 1982 amendments to the ESA created incidental take permitting
provisions for non-Federal actions (section 10(a)(1)(B)) with specific
requirements (sections 10(a)(2)(A)(ii) and 10(a)(2)(B)(ii)) for
mitigating impacts to listed species to the maximum extent practicable,
and amended section 7(b) to include an incidental take statement
provision for Federal agency actions that do not jeopardize the
continued existence of listed species or result in the destruction or
adverse modification of critical habitat. These amendments provide a
legal means by which non-Federal and Federal actions are exempted from
the prohibition against take in section 9 for endangered species and
from comparable prohibitions adopted by regulation under section 4(d)
for threatened species.
Mitigation, as broadly defined in this policy, does not relieve an
action proponent of the obligation to secure exemption for unavoidable
taking that results incidentally from otherwise lawful activities.
Nevertheless, mitigation is an integral component of the section 7 and
10 processes by addressing the conservation needs of listed species
within the context of the action and the impacts of the action on the
species.
Under ESA section 7 the Service has consistently acknowledged and
accepted or applied mitigation in the form of:
Conservation measures voluntarily included as part of a
proposed Federal action that avoid, minimize, rectify, reduce, or
compensate for unavoidable (also known as residual) impacts to a listed
species;
components of a reasonable and prudent alternative to
avoid jeopardizing the continued existence of listed species or
destroying or adversely modifying designated critical habitat; and
reasonable and prudent measures within an incidental take
statement to minimize the impacts of taking on the affected listed
species.
This policy encourages the Service to utilize a broader definition
of mitigation
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where allowed by law. Under section 10(a)(2), a non-Federal applicant
is required to take steps ``to minimize and mitigate such impacts . . .
to the maximum extent practicable,'' among other requirements to
receive an incidental take permit. In addition, issuance of an
incidental take permit under section 10 is a Federal action subject to
the consultation requirements of section 7(a)(2).
This policy serves as over-arching Service guidance applicable to
all actions for which the Service has specific authority to recommend
or require the mitigation of impacts to fish, wildlife, plants, and
their habitats, including those covered by the ESA. We intend to adapt
Service program-specific policies, handbooks, and guidance documents,
consistent with applicable statutes, to integrate the spirit and intent
of this policy. For example, we anticipate publishing a Service policy
specific to compensatory mitigation under the ESA that will align with
the guidance described herein while providing additional operational
detail.
Mitigation Policy of the U.S. Fish and Wildlife Service
1. Purpose
This policy is applicable to all actions for which the U.S. Fish
and Wildlife Service (Service) has specific authority to recommend or
require the mitigation of impacts to fish, wildlife, plants, and their
habitats. This policy provides guidance for Service personnel. The
policy allows for variations appropriate to action- and resource-
specific circumstances. It will help to ensure consistent and effective
recommendations by outlining policy for determining the levels of
mitigation needed and the various methods for accomplishing mitigation.
It will help align Service-recommended mitigation with conservation
objectives for affected resources and the strategies for achieving
those objectives at ecologically relevant scales. It will allow action
agencies and proponents to anticipate Service recommendations and plan
for mitigation measures early, thus avoiding delays and assuring equal
consideration of fish and wildlife resources with other action features
and purposes. This policy supersedes the Fish and Wildlife Service
Mitigation Policy (46 FR 7644-7663) published in 1981. Definitions for
terms used throughout this policy are provided in section 6.
2. Authority
The Service has jurisdiction over a broad range of fish and
wildlife resources. Service authorities are codified under multiple
statutes that address management and conservation of natural resources
from many perspectives, including, but not limited to the effects of
land, water, and energy development on fish, wildlife, plants, and
their habitats. We list below the statutes that provide the Service,
directly or indirectly through delegation from the Secretary of the
Interior, specific authority for conservation of these resources and
that give the Service a role in mitigation planning for actions
affecting them. We further discuss the Service's mitigation planning
role under each statute and list additional authorities in Appendix A.
Bald and Golden Eagle Protection Act, 16 U.S.C. 668 et seq.
(Eagle Act)
Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et
seq. (ESA)
Federal Land and Policy Management Act, 43 U.S.C. 1701 et seq.
(FLPMA)
Federal Power Act, 16 U.S.C. 791-828c
Federal Water Pollution Control Act (Clean Water Act), 33
U.S.C. 1251 et seq. (CWA)
Fish and Wildlife Conservation Act, 16 U.S.C. 2901-2912
Fish and Wildlife Coordination Act, as amended, 16 U.S.C. 661-
667(e) (FWCA)
Marine Mammal Protection Act of 1972, as amended, 16 U.S.C.
1361 et seq. (MMPA)
Migratory Bird Treaty Act, 16 U.S.C. 703-712 (MBTA)
National Environmental Policy Act, 42 U.S.C. 4371 et seq.
(NEPA)
National Wildlife Refuge System Administration Act, 16 U.S.C.
668dd et seq.
3. Scope
3.1. Actions
This policy applies to all Service activities related to evaluating
the effects of proposed actions and subsequent recommendations or
requirements to mitigate impacts to resources, defined in section 3.2.
For purposes of this policy, actions include: (a) Activities conducted,
authorized, licensed, or funded by Federal agencies (including Service-
proposed activities); (b) non-Federal activities to which one or more
of the Service's statutory authorities apply to make mitigation
recommendations or specify mitigation requirements; and (c) the
Service's provision of technical assistance to partners in
collaborative mitigation planning processes that occur outside of
individual action review.
3.2. Resources
This policy may apply to specific resources based on any Federal
authority or combination of authorities, such as treaties, statutes,
regulations, or Executive Orders, that empower the Federal Government
to manage, control, or protect fish, wildlife, plants, and their
habitats that are affected by proposed actions. Such Federal authority
need not be exclusive, comprehensive, or primary, and in many cases,
may overlap with that of States or tribes or both.
This policy applies to those resources identified in statute or
implementing regulations that provide the Service authority to make
mitigation recommendations or specify mitigation requirements for the
actions described above. This is inclusive of, but not limited to, the
federal trust fish and wildlife resources concept.
The Service has traditionally described its trust resources as
migratory birds, federally listed endangered and threatened species,
certain marine mammals, and inter-jurisdictional fish. Some authorities
narrowly define or specifically identify covered taxa, such as
threatened and endangered species, marine mammals, or the species
protected by the Migratory Bird Treaty Act. This policy applies to
trust resources; however, Service Regions and field stations retain
discretion to engage actions on an expanded basis under appropriate
authorities.
The types of resources for which the Service is authorized to
recommend or require mitigation also include those that contribute
broadly to ecological functions that sustain species. The definitions
of the terms ``wildlife'' and ``wildlife resources'' in the Fish and
Wildlife Coordination Act include birds, fishes, mammals, and all other
classes of wild animals, and all types of aquatic and land vegetation
upon which wildlife is dependent. Section 404 of the Clean Water Act
(33 CFR 320.4) codifies the significance of wetlands and other waters
of the United States as important public resources for their habitat
value, among other functions. The Endangered Species Act envisions a
broad consideration when describing its purposes as providing a means
whereby the ecosystems upon which endangered and threatened species
depend may be conserved and when directing Federal agencies at Sec.
7(a)(1) to utilize their authorities in furtherance of the purposes of
the ESA by carrying out programs for the conservation of listed
species. The purpose of the National Environmental Policy Act (NEPA)
also
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establishes an expansive focus in promoting efforts that will prevent
or eliminate damage to the environment while stimulating human health
and welfare. In NEPA, Congress recognized the profound impact of human
activity on the natural environment, particularly through population
growth, urbanization, industrial expansion, resource exploitation, and
new technologies. NEPA further recognized the critical importance of
restoring and maintaining environmental quality, and declared a Federal
policy of using all practicable means and measures to create and
maintain conditions under which humans and nature can exist in
productive harmony. These statutes address systemic concerns and
provide authority for protecting habitats and landscapes.
3.3. Exclusions
This policy does not apply retroactively to completed actions or to
actions specifically exempted under statute from Service review. It
does not apply where the Service has already agreed to a mitigation
plan for pending actions, except where: (a) New activities or changes
in current activities would result in new impacts; (b) a law
enforcement action occurs after the Service agrees to a mitigation
plan; (c) an after-the-fact permit is issued; or (d) where new
authorities, or failure to implement agreed-upon recommendations
warrant new mitigation planning. Service personnel may elect to apply
this policy to actions that are under review as of the date of its
final publication.
3.4. Applicability to Service Actions
This policy applies to actions that the Service proposes, including
those for which the Service is the lead or co-lead Federal agency for
compliance with NEPA. However, it applies only to the mitigation of
impacts to fish, wildlife, plants, and their habitats that are
reasonably foreseeable from such proposed actions. When it is the
Service that proposes an action, the Service acknowledges its
responsibility to consult with Tribes, and to consider the effects to,
and mitigation for, impacts to resources besides fish, wildlife,
plants, and their habitats (e.g., cultural and historic resources,
traditional practices, environmental justice, public health,
recreation, other socio-economic resources, etc.). This policy neither
provides guidance nor supersedes existing guidance for mitigating
impacts to resources besides those defined in section 3.2, Resources.
NEPA requires the action agency to evaluate the environmental
effects of alternative proposals for agency action, including the
environmental effects of proposed mitigation (e.g., effects on historic
properties resulting from habitat restoration). Considering impacts to
resources besides fish and wildlife requires the Service to coordinate
with entities having jurisdiction by law, special expertise, or other
applicable authority. Appendix B further discusses the Service's
consultation responsibilities with tribes related to fish and wildlife
impact mitigation, e.g., statutes that commonly compel the Service to
address the possible environmental impacts of mitigation activities for
fish and wildlife resources. It also supplements existing Service NEPA
guidance by describing how this policy integrates with the Service's
decision-making process under NEPA.
3.5. Financial Assistance Programs and Mitigation
The Service's 60 financial assistance programs disburse more than
$1 billion annually to non-Federal recipients through grants and
cooperative agreements. Most programs leverage Federal funds by
requiring or encouraging the commitment of matching cash or in-kind
contributions. Recipients have acquired approximately 10 million acres
in fee title, conservation easements, or leases through these programs.
To foster consistent application of financial assistance programs with
respect to mitigation processes, Appendix C addresses the limited role
that specific types of mitigation can play in financial assistance
programs.
4. General Policy and Principles
The mission of the Service is working with others to conserve,
protect, and enhance fish, wildlife, plants, and their habitats for the
continuing benefit of the American people. In furtherance of this
mission, the Service has a responsibility to ensure that impacts to
fish, wildlife, plants, and their habitats in the United States, its
territories, and possessions are considered when actions are planned,
and that such impacts are mitigated so that these resources may provide
a continuing benefit to the American people. Consistent with
Congressional direction through the statutes listed in the
``Authority'' section of this policy, the Service will provide timely
and effective recommendations to conserve, protect, and enhance fish,
wildlife, plants, and their habitats when proposed actions may reduce
the benefits thereof to the public.
Fish and wildlife and their habitats are resources that provide
commercial, recreational, social, and ecological value to the Nation.
For Tribal Nations, specific fish and wildlife resources and associated
landscapes have traditional cultural and religious significance. Fish
and wildlife are conserved and managed for the people by State,
Federal, and tribal governments. If reasonably foreseeable impacts of
proposed actions are likely to reduce or eliminate the public benefits
that are provided by such resources, these governments have shared
responsibility or interest in recommending means and measures to
mitigate such losses. Accordingly, in the interest of serving the
public, it is the policy of the U.S. Fish and Wildlife Service to seek
to mitigate losses of fish, wildlife, plants, their habitats, and uses
thereof resulting from proposed actions.
The following fundamental principles will guide Service-recommended
mitigation, as defined in this policy, across all Service programs.
a. The goal is a net conservation gain. The Service's mitigation
planning goal is to improve (i.e., a net gain) or, at minimum, to
maintain (i.e., no net loss) the current status of affected resources,
as allowed by applicable statutory authority and consistent with the
responsibilities of action proponents under such authority, primarily
for important, scarce, or sensitive resources, or as required or
appropriate. Service mitigation recommendations or requirements will
specify the means and measures that achieve this goal, as informed by
established conservation objectives and strategies.
b. Observe an appropriate mitigation sequence. The Service
recognizes it is generally preferable to take all appropriate and
practicable measures to avoid and minimize adverse effects to
resources, in that order, before compensating for remaining losses.
However, to achieve the best possible conservation outcomes, the
Service recognizes that some limited circumstances may warrant a
departure from this preferred sequence. The Service will prioritize the
applicable mitigation types based on a valuation of the affected
resources as described in this policy in a landscape conservation
context.
c. A landscape approach will inform mitigation. The Service will
integrate mitigation into a broader ecological context with applicable
landscape-level conservation plans, where available, when developing,
approving, and implementing plans, and by steering mitigation efforts
in a manner that will best contribute to achieving conservation
objectives. The Service will consider climate change and other
stressors that may affect ecosystem
[[Page 12385]]
integrity and the resilience of fish and wildlife populations, which
will inform the scale, nature, and location of mitigation measures
necessary to achieve the best possible conservation outcome. The
Service will foster partnerships with Federal and State partners,
tribes, and other stakeholders to design mitigation strategies that
will prevent fragmented landscapes and restore core areas and
connectivity necessary to sustain species.
d. Ensure consistency and transparency. The Service will use timely
and transparent processes that provide predictability and uniformity
through the consistent application of standards and protocols as may be
developed to achieve effective mitigation.
e. Science-based mitigation. The Service will use the best
available science in formulating and monitoring the long-term
effectiveness of its mitigation recommendations and decisions,
consistent with all applicable Service science policy.
f. Durability. The Service will recommend or require that
mitigation measures are durable, and at a minimum, maintain their
intended purpose for as long as impacts of the action persist on the
landscape. The Service will recommend or require that implementation
assurances, including financial, be in place when necessary to assure
the development, maintenance, and long-term viability of the mitigation
measure.
g. Effective compensatory mitigation. The Service will recommend or
require that compensatory mitigation be implemented before the impacts
of an action occur and be additional to any existing or foreseeably
expected conservation efforts planned for the future. To ensure
consistent implementation of compensatory mitigation, the Service will
support application of equivalent standards regardless of the mechanism
used to provide compensatory mitigation.
5. Mitigation Framework
This section of the policy provides the conceptual framework and
guidance for implementing the general policy and principles declared in
section 4 in an action- and landscape-specific mitigation context.
Implementation of the general policy and principles as well as the
direction provided in 600 DM 6 occurs by integrating landscape scale
decision-making within the Service's existing process for assessing
effects of an action and formulating mitigation measures. The key terms
used in describing this framework are defined in section 6,
Definitions.
The Service requires or recommends mitigation under one or more
Federal authorities (section 2) when necessary and appropriate to
avoid, minimize, and/or compensate for impacts to resources (section
3.2) resulting from proposed actions (section 3.1). Our goal for
mitigation is to achieve a net conservation gain or, at minimum, no net
loss of the affected resources (section 4). Sections 5.1 through 5.9,
summarized below, provide an overview of the mitigation framework and
describe how the Service will engage actions as part of its process of
assessing the effects of an action and formulating mitigation measures
that would achieve this goal. Variations appropriate to action-specific
circumstances are permitted; however, the Service will provide action
proponents with the reasons for such variations.
Synopsis of the Service Mitigation Framework
5.1. Integrating Mitigation Planning with Conservation Planning.
The Service will utilize landscape-scale approaches and landscape
conservation planning to inform mitigation, including identifying areas
for mitigation that are most important for avoiding and minimizing
impacts, improving habitat suitability, and compensating for
unavoidable impacts to species. Advance mitigation plans can achieve
efficiencies for attaining conservation objectives while streamlining
the planning and regulatory processes for specific landscapes and/or
classes of actions within a landscape.
5.2. Collaboration and Coordination. At both the action and
landscape scales, the Service will collaborate and coordinate with
action proponents and with our State, Federal, and tribal conservation
partners in mitigation.
5.3. Assessment. Assessing the effects of proposed actions and
proposed mitigation measures is the basis for formulating a plan to
meet the mitigation policy goal. This policy does not endorse specific
methodologies, but does describe several principles of effects
assessment and general characteristics of methodologies that the
Service will use in implementing this policy.
5.4. Evaluation Species. The Service will identify the species
evaluated for mitigation purposes. The Service should select the
smallest set of evaluation species necessary, but include all species
for which the Service is required to issue biological opinions,
permits, or regulatory determinations. When actions would affect
multiple resources of conservation interest, evaluation species should
serve to best represent other affected species or aspects of the
environment. This section describes characteristics of evaluation
species that are useful in planning mitigation.
5.5. Habitat Valuation. The Service will assess the value of
affected habitats to evaluation species based on their scarcity,
suitability, and importance to achieving conservation objectives. This
valuation will determine the relative emphasis the Service will place
on avoiding, minimizing, and compensating for impacts to habitats of
evaluation species.
5.6. Means and Measures. The means and measures that the Service
recommends for achieving the mitigation policy goal are action- and
resource-specific applications of the three general types of impact
mitigation (avoid, minimize, and compensate). This section provides an
expanded definition of each type, explains its place in this policy,
and lists generalized examples of its intended use in Service
mitigation recommendations and requirements.
5.7. Recommendations. This section describes general standards for
Service recommendations, and declares specific preferences for various
characteristics of compensatory mitigation measures, e.g., timing,
location.
5.8. Documentation. Service involvement in planning and
implementing mitigation requires documentation that is commensurate in
scope and level of detail with the significance of the potential
impacts to resources. This section provides an outline of documentation
elements that are applicable at three different stages of the
mitigation planning process: early planning, effects assessment, and
final recommendations.
5.9. Follow-up. Determining whether Service mitigation
recommendations were adopted and effective requires monitoring, and
when necessary, corrective action.
5.1. Integrating Mitigation With Conservation Planning
The Service's mitigation goal is to improve or, at minimum,
maintain the current status of affected resources, as allowed by
applicable statutory authority and consistent with the responsibilities
of action proponents under such authority (see section 4). This policy
provides a framework for formulating mitigation means and measures (see
section 5.6) intended to efficiently achieve the mitigation planning
goal based upon best available science. This framework seeks to
integrate mitigation requirements and recommendations into conservation
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planning to better protect or enhance populations and those features on
a landscape that are necessary for the long-term persistence of
biodiversity and ecological functions. Functional ecosystems enhance
the resilience of fish and wildlife populations challenged by the
widespread stressors of climate change, invasive species, and the
continuing degradation and loss of habitat through human alteration of
the landscape. Achieving the mitigation goal of this policy involves:
Avoiding and minimizing those impacts that most seriously
compromise resource sustainability;
rectifying and reducing over time those impacts where
restoring or maintaining conditions in the affected area most
efficiently contributes to resource sustainability; and
strategically compensating for impacts so that actions
result in an improvement in the affected resources, or at a minimum,
result in a no net loss of those resources.
The Service recognizes that we will engage in mitigation planning
for actions affecting resources in landscapes for which conservation
objectives and strategies to achieve those objectives are not yet
available, well developed, or formally adopted. The landscape-level
approach to resource decisionmaking described in this policy and in the
Departmental Manual (600 DM 6.6D) applies in contexts with or without
established conservation plans, but it will achieve its greatest
effectiveness when integrated with such planning.
Whenever required or appropriate, the Service will seek a net gain
in the conservation outcome of actions we engage for purposes of this
policy. It is consistent with the Service's mission to identify and
promote opportunities for resource enhancement during action planning,
i.e., to decrease the gap between the current and desired status of a
resource. Mitigation planning often presents practicable opportunities
to implement mitigation measures in a manner that outweighs impacts to
affected resources. When resource enhancement is also consistent with
the mission, authorities, and/or responsibilities of action proponents,
the Service will encourage proponents to develop measures that result
in a net gain toward achieving conservation objectives for the
resources affected by their actions. Such proponents include, but are
not limited to, Federal agencies when responsibilities such as the
following apply to their actions:
Carry out programs for the conservation of endangered and
threatened species (Endangered Species Act, section 7(a)(1));
consult with the Service regarding both mitigation and
enhancement in water resources development (Fish and Wildlife
Coordination Act, section 2);
enhance the quality of renewable resources (National
Environmental Policy Act, section 101(b)(6)); and/or
restore and enhance bird habitat (Executive Order 13186,
section 3(e)(2)).
To serve the public interest in fish and wildlife resources, the
Service works under various authorities (see section 2) with partners
to establish conservation objectives for species, and to develop and
implement plans for achieving such objectives in various landscapes. We
define a landscape as an area encompassing an interacting mosaic of
ecosystems and human systems that is characterized by common management
concerns (see section 6, Definitions). Relative to this policy, such
management concerns relate to conserving species. The geographic scale
of a landscape is variable, depending on the interacting elements that
are meaningful to particular conservation objectives and may range in
size from large regions to a single watershed or habitat type. When
proposed actions may affect species in a landscape addressed in one or
more established conservation plans, such plans will provide the basis
for Service recommendations to avoid and minimize particular impacts,
rectify and reduce over time others, and compensate for others. The
criteria in this policy for selecting evaluation species (section 5.4)
and assessing the value of their affected habitats (section 5.5) are
designed to place mitigation planning in a landscape conservation
context by applying the various types of mitigation where they are most
effective at achieving the mitigation policy goal.
The Service recognizes the inefficiency of automatically applying
under all circumstances each mitigation type in the traditional
mitigation sequence. As DM 6 also recognizes, in limited situations,
specific circumstances may exist that warrant an alternative from this
sequence, such as when seeking to achieve the maximum benefit to
impacted resources and their values, services, and functions. For
example, the cost and effort involved in avoiding impacts to a habitat
that is likely to become isolated or otherwise unsuitable for
evaluation species in the foreseeable future may result in less
conservation when compared to actions that achieve a greater
conservation benefit if used to implement offsite compensatory
mitigation in area(s) that are more important in the long term to
achieving conservation objectives for the affected resource(s).
Conversely, onsite avoidance is the priority where impacts would
substantially impair progress toward achieving conservation objectives.
The Service will rely upon existing conservation plans that are
based upon the best available scientific information, consider climate-
change adaptation, and contain specific objectives aimed at the
biological needs of the affected resources. Where existing conservation
plans are not available that incorporate all of these elements or are
not updated with the best available scientific information, Service
personnel will otherwise incorporate the best available science into
mitigation decisions and recommendations and continually seek better
information in areas of greatest uncertainty.
Advance Mitigation Planning at Larger Scales
The Service supports the planning and implementation of advance
mitigation plans in a landscape conservation context, i.e., mitigation
developed before actions are proposed, particularly in areas where
multiple similar actions are expected to adversely affect a similar
suite of species. Advance mitigation plans should complement or tier
from existing conservation plans relevant to the affected resources
(e.g., recovery plans, habitat conservation plans, or non-governmental
plans). Effective and efficient advance mitigation identify high-
priority resources and areas on a regional or landscape scale, prior to
and without regard to specific proposed actions, in which to focus: (a)
Resource protection for avoiding impacts; (b) resource enhancement or
protection for compensating unavoidable impacts; and (c) measures to
improve the resilience of resources in the face of climate change or
otherwise increase the ability to adapt to climate and other landscape
change factors. In many cases, the Service can take advantage of
available Federal, State, tribal, local or non-governmental plans that
identify such priorities.
Developing advance mitigation should involve stakeholders in a
transparent process for defining objectives and the means to achieving
those objectives. Planning for advance mitigation should establish
standards for determining the appropriate scale, type, and location of
mitigation for impacts to specific resources within a specified area.
Adopted plans that incorporate these features are likely to
substantially shorten the time needed for regulatory review and
approval as actions are subsequently proposed. Advance mitigation
plans, not limited to
[[Page 12387]]
those developed under a programmatic NEPA decision-making process or a
Habitat Conservation Plan process, will provide efficiencies for
project-level Federal actions and will also better address potential
cumulative impacts.
Procedurally, advance mitigation should draw upon existing land-use
plans and databases associated with human infrastructure, including
transportation, and water and energy development, as well as ecological
data and conservation plans for floodplains, water quality, high-value
habitats, and key species. Stakeholders and Service personnel process
these inputs to design a conservation network that considers needed
community infrastructure and clearly prioritizes the role of mitigation
in conserving natural features that are necessary for long-term
maintenance of ecological functions on the landscape. As development
actions are proposed, an effective advance regional mitigation plan
will provide a transparent process for identifying appropriate
mitigation opportunities within the regional framework and selecting
the mitigation projects with the greatest aggregated conservation
benefits.
5.2. Collaboration and Coordination
The Service shares responsibility for conserving fish and wildlife
with State, local and tribal governments and other Federal agencies and
stakeholders. Our role in mitigation may involve Service biological
opinions, permits, or other regulatory determinations as well as
providing technical assistance. The Service must work in collaboration
and coordination with other governments, agencies, organizations, and
action proponents to implement this policy. The Service will:
a. Coordinate activities with the appropriate Federal and State
agencies, tribes, and other stakeholders who have responsibilities for
fish and wildlife resources when developing mitigation recommendations
for resources of concern to those entities;
b. to consider resources and plans made available by State, local,
and tribal governments and other Federal agencies;
c. seek to apply compatible approaches and avoid duplication of
efforts with those same entities;
d. collaborate with Federal and State agencies, tribes, and other
stakeholders in the formulation of landscape-level mitigation plans;
and
e. cooperate with partners to develop, maintain, and disseminate
tools and conduct training in mitigation methodologies and
technologies.
The Service should engage agencies and applicants during the early
planning and design stage of actions. The Service is encouraged to
engage in early coordination during the NEPA federal decision-making
process to resolve issues in a timely manner (516 DM 8.3). Coordination
during early planning, including participation as a cooperating agency
or on interdisciplinary teams, can lead to better conservation
outcomes. For example, the Federal Highway Administration (FHWA) is
most likely to adopt alternatives that avoid or minimize impacts when
the Service provides early comments under section 4(f) of the
Transportation Act of 1966 relative to impacts to refuges or other
Service-supported properties. When we identify potential impacts to
tribal interests, the Service, in coordination with affected tribes,
may recommend mitigation measures to address those impacts.
Recommendations will carry more weight when the Service and tribe have
overlapping authority for the resources in question and when
coordinated through government-to-government consultation.
Coordination and collaboration with stakeholders allows the Service
to confirm that the persons conducting mitigation activities, including
contractors and other non-Federal persons, have the appropriate
experience and training in mitigation best practices, and where
appropriate, include measures in employee performance appraisal plans
or other personnel or contract documents, as necessary. Similarly, this
allows for the development of rigorous, clear, and consistent guidance,
suitable for field staff to implement mitigation or to deny
authorizations when impacts to resources and their values, services,
and functions are not acceptable. Collaboratively working across
Department of the Interior bureaus and offices allows the Service to
conduct periodic reviews of the execution of mitigation activities to
confirm consistent implementation of the principles of this policy.
5.3. Assessment
Effects are changes in environmental conditions caused by an action
that are relevant to the resources (fish, wildlife, plants, and their
habitats) covered by this policy. This policy addresses mitigation for
impacts to these resources. We define impacts as adverse effects
relative to the affected resources. Mitigation is the general label for
all measures implemented as part of an action to avoid, minimize, and/
or compensate for its predicted impacts.
The Service should design mitigation measures to achieve the
mitigation goal of net gain, as required or appropriate, or a minimum
of no net loss for affected resources. This design should take into
account the degree of risk and uncertainty associated with both
predicted project effects and predicted outcomes of the mitigation
measures. The following principles shall guide the Service's assessment
of anticipated effects and the expected effectiveness of mitigation
measures.
1. The Service will consider action effects and mitigation outcomes
within planning horizons commensurate with the expected duration of the
action's impacts. In predicting whether mitigation measures will
achieve the mitigation policy goal for the affected resources during
the planning horizon, the Service will recognize that predictions about
the more-distant future are more uncertain and adjust the mitigation
recommendations accordingly.
2. Action proponents should provide reasonable predictions about
environmental conditions relevant to the affected area both with and
without the action over the course of the planning horizon (i.e.,
baseline condition). If such predictions are not provided, the Service
will assess the effects of a proposed action over the planning horizon
considering: (a) the full spatial and temporal extent of resource-
relevant direct and indirect effects caused by the action, including
resource losses that will occur during the period between
implementation of the action and the mitigation measures; and (b) any
cumulative effects to the affected resources resulting from existing
concurrent or reasonably foreseeable future activities in the landscape
context. When assessing the affected area without the action, the
Service will also evaluate: (a) expected natural species succession;
(b) implementation of approved restoration/improvement plans; and (c)
reasonably foreseeable conditions resulting directly or indirectly from
any other factors that may affect the evaluation of the project,
including, but not limited to, climate change.
3. The Service will use the best available effect assessment
methodologies that:
a. Display assessment results in a manner that allows decision-
makers, action proponents, and the public to compare present and
predicted future conditions for affected resources;
b. measure adverse and beneficial effects using common metrics to
determine mitigation measures necessary to achieve the mitigation
policy goal for the affected resources;
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c. predict effects over time, including changes to affected
resources that would occur with and without the action, changes induced
by climate change, and changes resulting from reasonably foreseeable
actions;
d. are practical, cost-effective, and commensurate with the scope
and scale of impacts to affected resources;
e. are sufficiently sensitive to estimate the type and relative
magnitude of effects across the full spectrum of anticipated beneficial
and adverse effects;
f. may integrate predicted effects with data from other disciplines
such as cost or socioeconomic analysis; and
g. allow for incorporation of new data or knowledge as action
planning progresses.
4. Where appropriate effects assessment methods or technologies
useful in valuation of mitigation are not available, Service employees
will apply best professional judgment supported by best available
science to assess impacts and to develop mitigation recommendations.
5.4. Evaluation Species
Section 3.2 identifies the resources to which this policy applies.
Depending on the authorities under which the Service is engaging an
action for mitigation purposes, these resources may include: Particular
species; fish, wildlife, and plants more generally; and their habitats,
including those contributing to ecological functions that sustain
species. Always, however, one or more species of conservation interest
to the Service is necessary to initiate mitigation planning, and under
this policy, the Service will explicitly identify evaluation species
for mitigation purposes. In instances where the Service is required to
issue a biological opinion, permit, or regulatory determination for
specific species, the Service will identify such species, at minimum,
as evaluation species.
Selecting evaluation species in addition to those for which the
Service must provide a regulatory determination varies according to
action-specific circumstances. In practice, an initial examination of
the habitats affected and review of typically associated species of
conservation interest are usually the first steps in identifying
evaluation species. The purpose of Service mitigation planning is to
develop a set of recommendations that would improve or, at minimum,
maintain the current status of the affected resources. When available,
conservation planning objectives (i.e., the desired status of the
affected resources) will inform mitigation planning (see section 5.1).
Therefore, following those species for which we must provide a
regulatory determination, species for which action effects would cause
the greatest increase in the gap between their current and desired
status are the principal choices for selection as evaluation species.
An evaluation species must occur within the affected area for at
least one stage of its life history, but as other authorities permit,
the Service may consider evaluation species that are not currently
present in the affected area if the species is:
a. Identified in approved State or Federal fish and wildlife
conservation, restoration, or improvement plans that include the
affected area; or
b. likely to occur in the affected area during the reasonably
foreseeable future with or without the proposed action due to natural
species succession.
Evaluation species may or may not occupy the affected area year-
round or when direct effects of the action would occur.
The Service should select the smallest set of evaluation species
necessary to relate the effects of an action to the full suite of
affected resources and applicable authorities, including all species
for which the Service is required to issue opinions, permits, or
regulatory determinations. When an action affects multiple resources,
evaluation species should represent other affected species or aspects
of the environment so that the mitigation measures formulated for the
evaluation species will mitigate impacts to other similarly affected
resources to the greatest extent possible. Characteristics of
evaluation species that are useful in mitigation planning may include,
but are not limited to, the following:
a. Species that are addressed in conservation plans relevant to the
affected area and for which habitat objectives are articulated;
b. species strongly associated with an affected habitat type;
c. species for which habitat limiting factors are well understood;
d. species that perform a key role in ecological processes (e.g.,
nutrient cycling, pollination, seed dispersal, predator-prey
relations), which may, therefore, serve as indicators of ecosystem
health;
e. species that require large areas of contiguous habitat,
connectivity between disjunct habitats, or a distribution of suitable
habitats along migration/movement corridors, which may, therefore,
serve as indicators of ecosystem functions;
f. species that belong to a group of species (a guild) that uses a
common environmental resource;
g. species for which sensitivity to one or more anticipated effects
of the proposed action is documented;
h. species with special status (e.g., species of concern in E.O.
13186, Birds of Conservation Concern);
i. species of cultural or religious significance to tribes;
j. species that provide monetary and non-monetary benefits to
people from consumptive and non-consumptive uses including, but not
limited to, fishing, hunting, bird watching, and educational,
aesthetic, scientific, or subsistence uses;
k. species with characteristics such as those above that are also
easily monitored to evaluate the effectiveness of mitigation actions
and/or
l. species that would be subject to direct mortality as a result of
an action (e.g. wind turbine).
5.5. Habitat Valuation
Species conservation relies on functional ecosystems, and habitat
conservation is generally the best means of achieving species
population objectives. Section 5.4 provides the guidance for selecting
evaluation species to represent these habitat resources. The value of
specific habitats to evaluation species varies widely, such that the
loss or degradation of higher-value habitats has a greater impact on
achieving conservation objectives than the loss or degradation of an
equivalent area of lower-value habitats. To maintain landscape capacity
to support species, our mitigation policy goal (Section 4) applies to
all affected habitats of evaluation species, regardless of their value
in a conservation context. However, the Service will recognize variable
habitat value in formulating appropriate means and measures to mitigate
the impacts of proposed actions, as described in this section. The
primary purpose of habitat valuation is to determine the relative
emphasis the Service will place on avoiding, minimizing, and
compensating for impacts to habitats of evaluation species.
The Service will assess the overall value of affected habitats by
considering their: (a) Scarcity; (b) suitability for evaluation
species; and (c) importance to the conservation of evaluation species.
Scarcity is the relative spatial extent (e.g., rare,
common, or abundant) of the habitat type in the landscape context.
Suitability is the relative ability of the affected
habitat to support one or more elements of the evaluation species' life
history (reproduction, rearing, feeding, dispersal, migration,
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hibernation, or resting protected from disturbance, etc.) compared to
other similar habitats in the landscape context. A habitat's ability to
support an evaluation species may vary over time.
Importance is the relative significance of the affected
habitat, compared to other similar habitats in the landscape context,
to achieving conservation objectives for the evaluation species.
Habitats of high importance are irreplaceable or difficult to replace,
or are critical to evaluation species by virtue of their role in
achieving conservation objectives within the landscape (e.g., sustain
core habitat areas, linkages, ecological functions). Areas containing
habitats of high importance are generally, but not always, identified
in conservation plans addressing resources under Service authorities
(e.g., in recovery plans) or when appropriate, under authorities of
partnering entities (e.g., in State wildlife action plans, Landscape
Conservation Cooperative conservation ``blueprints,'' etc.).
The Service has flexibility in applying appropriate methodologies
and best available science when assessing the overall value of affected
habitats, but also has a responsibility to communicate the rationale
applied, as described in section 5.8 (Documentation Standards). These
three parameters are the considerations that will inform Service
determinations of the relative value of an affected habitat that will
then be used to guide application of the mitigation hierarchy under
this policy.
For all habitats, the Service will apply appropriate and
practicable measures to avoid and minimize impacts over time, generally
in that order, before applying compensation as mitigation for remaining
impacts. For habitats we determine to be of high value, however, the
Service will seek avoidance of all impacts. For habitats the Service
determines to be of lower value, we will consider whether compensation
is more effective than other components of the mitigation hierarchy to
maintain the current status of evaluation species, and if so, may seek
compensation for most or all such impacts.
The relative emphasis given to mitigation types within the
mitigation hierarchy depends on the landscape context and action-
specific circumstances that influence the efficacy and efficiency of
available mitigation means and measures. For example, it is generally
more effective and efficient to achieve the mitigation policy goal by
maximizing avoidance and minimization of impacts to habitats that are
either rare, of high suitability, or of high importance, than to rely
on other measures, because these qualities are typically not easily
repaired, enhanced through on-site management, or replaced through
compensatory actions. Similarly, compensatory measures may receive
greater emphasis when strategic application of such measures (i.e., to
further the objectives of relevant conservation plans) would more
effectively and efficiently achieve the policy goal for mitigating
impacts to habitats that are either abundant, of low suitability, or of
low importance.
When more than one evaluation species uses an affected habitat, the
highest valuation will govern the Service's mitigation recommendations
or requirements. Regardless of the habitat valuation, Service
mitigation recommendations will represent our best judgment as to the
most practicable means of ensuring that a proposed action improves or,
at minimum, maintains the current status of the affected resources.
5.6. Means and Measures
The means and measures that the Service recommends for achieving
the goal of this policy (see section 4) are action- and resource-
specific applications of the five general types of impact mitigation:
Avoid, minimize, rectify, reduce over time, and compensate. The third
and fourth mitigation types, rectify and reduce over time, are combined
under the minimization label (e.g., in mitigation planning for
permitting actions under the Clean Water Act, in the Presidential
Memorandum on Mitigating Impacts on Natural Resources from Development
and Encouraging Related Private Investment, and in 600 DM 6.4), which
we adopt for this policy and for the structure of this section, while
also providing specific examples for rectify and reduce. When carrying
out its responsibilities under NEPA, the Service will apply the
mitigation meanings and sequence in the NEPA regulations (40 CFR
1508.20). In particular, the Service will retain the ability to
distinguish, as needed, between minimizing, rectifying, and reducing or
eliminating the impact over time, as described in Appendix B: Service
Mitigation Policy and NEPA.
The emphasis that the Service gives to each mitigation type depends
on the evaluation species selected (section 5.4) and the value of their
affected habitats (section 5.5). Habitat valuation aligns mitigation
with conservation planning for the evaluation species by identifying
where it is critical to avoid habitat impacts altogether and where
compensation measures may more effectively advance conservation
objectives. All appropriate mitigation measures have a clear connection
with the anticipated effects of the action and are commensurate with
the scale and nature of those effects.
Nothing in this policy supersedes the statutes and regulations
governing prohibited ``take'' of wildlife (e.g., ESA-listed species,
migratory birds, eagles); however, the policy applies to mitigating the
impacts to habitats and ecological functions that support populations
of evaluation species, including federally protected species. Attaining
the goal of improving or, at a minimum, maintaining the current status
of evaluation species will often involve applying a combination of
mitigation types. For each of the mitigation types, the following
subsections begin with a quote of the regulatory language at 40 CFR
1508.20, then provides an expanded definition, explains its place in
this policy, and lists generalized examples of its intended use in
Service mitigation recommendations. Ensuring that Service-recommended
mitigation measures are implemented and effective is addressed in
sections 5.8, Documentation, and 5.9, Follow-up.
5.6.1. Avoid
``Avoid the impact altogether by not taking a certain action or
parts of an action.'' Avoiding impacts is the first tier of the
mitigation hierarchy. Avoidance ensures that an action or a portion of
the action has no direct or indirect effects during the planning
horizon on fish, wildlife, plants, and their habitats. Actions may
avoid direct effects to a resource (e.g., by shifting the location of
the construction footprint), but unless the action also avoids indirect
effects caused by the action (e.g., loss of habitat suitability through
isolation from other habitats, accelerated invasive species
colonization, degraded water quality, etc.), the Service will not
consider that impacts to a resource are fully avoided. In some cases,
indirect effects may cumulatively result in population and habitat
losses that negate any conservation benefit from avoiding direct
effects. An impact is unavoidable when an appropriate and practicable
alternative to the proposed action that would not cause the impact is
unavailable. The Service will recommend avoiding all impacts to high-
value habitats. Generalized examples follow:
a. Design the timing, location, and/or operations of the action so
that specific resource impacts would not occur.
b. Add structural features to the action, where such action is
sustainable
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(e.g., fish and wildlife passage structures, water treatment
facilities, erosion control measures) that would eliminate specific
losses to affected resources.
c. Adopt a non-structural alternative to the action that is
sustainable and that would not cause resource losses (e.g., stream
channel restoration with appropriate grading and vegetation in lieu of
rip-rap).
d. Adopt the no-action alternative.
5.6.2. Minimize (Includes Rectify and Reduce Over Time)
``Minimize the impact by limiting the degree or magnitude of the
action and its implementation.'' Minimizing impacts, together with
rectifying and reducing over time, is the second tier of the mitigation
hierarchy. Minimizing is reducing the intensity of the impact (e.g.,
population loss, habitat loss, reduced habitat suitability, reduced
habitat connectivity, etc.) to the maximum extent appropriate and
practicable. Generalized examples of types of measures to minimize
impacts follow:
a. Reduce the overall spatial extent and/or duration of the action.
b. Adjust the daily or seasonal timing of the action.
c. Retain key habitat features within the affected area that would
continue to support life-history processes for the evaluation species.
d. Adjust the spatial configuration of the action to retain
corridors for species movement between functional habitats.
e. Apply best management practices to reduce water quality
degradation.
f. Adjust the magnitude, timing, frequency, duration, and/or rate-
of-change of water flow diversions and flow releases to minimize the
alteration of flow regime features that support life-history processes
of evaluation species.
g. Install screens and other measures necessary to reduce aquatic
life entrainment/impingement at water intake structures.
h. Install fences, signs, markers, and other measures necessary to
protect resources from impacts (e.g., fencing riparian areas to exclude
livestock, marking a heavy-equipment exclusion zone around burrows,
nest trees, and other sensitive areas).
Rectify. This subset of the second tier of the mitigation hierarchy
involves ``repairing, rehabilitating, or restoring the affected
environment.'' Rectifying impacts may possibly improve relative to no-
action conditions a loss in habitat availability and/or suitability for
evaluation species within the affected area and contribute to a net
conservation gain. Rectifying impacts may also involve directly
restoring a loss in populations through stocking. Generalized examples
follow:
a. Repair physical alterations of the affected areas to restore
pre-action conditions or improve habitat suitability for the evaluation
species (e.g., re-grade staging areas to appropriate contours, loosen
compacted soils, restore altered stream channels to stable dimensions).
b. Plant and ensure the survival of appropriate vegetation where
necessary in the affected areas to restore or improve habitat
conditions (quantity and suitability) for the evaluation species and to
stabilize soils and stream channels.
c. Provide for fish and wildlife passage through or around action-
imposed barriers to movement.
d. Consistent with all applicable laws, regulations, policies, and
conservation plans, stock species that experienced losses in affected
areas when habitat conditions are able to support them in affected
areas.
Reduce Over Time. This subset of the second tier of the mitigation
hierarchy is to ``reduce or eliminate the impact over time by
preservation and maintenance operations during the life of the
action.'' Reducing impacts over time is preserving, enhancing, and
maintaining the populations, habitats, and ecological functions that
remain in an affected area following the impacts of the action,
including areas that are successfully restored or improved through
rectifying mitigation measures. Preservation, enhancement, and
maintenance operations may improve upon conditions that would occur
without the action and contribute to a net conservation gain (e.g.,
when such operations would prevent habitat degradation expected through
lack of management needed for an evaluation species). Reducing impacts
over time is an appropriate means to achieving the mitigation goal
after applying all appropriate and practicable avoidance, minimization,
and rectification measures. Generalized examples follow:
a. Control land uses and limit disturbances to portions of the
affected area that may continue to support the evaluation species.
b. Control invasive species in the affected areas.
c. Manage fire-adapted habitats in the affected areas with an
appropriate timing and frequency of prescribed fire, consistent with
applicable laws, regulations, policies, and conservation plans.
d. In affected areas, maintain or replace equipment and structures
to prevent losses of fish and wildlife resources due to equipment
failure (e.g., cleaning and replacing trash racks and water intake
screens, maintaining fences that limit access to environmentally
sensitive areas).
e. Ensure proper training of personnel in operations necessary to
preserve existing or restored fish and wildlife resources in the
affected area.
5.6.3. Compensate
``Compensate for the impact by replacing or providing substitute
resources or environments.'' Compensating for impacts is the third and
final tier of the mitigation hierarchy. Compensation is protecting,
maintaining, enhancing, and/or restoring habitats and ecological
functions for an evaluation species, generally in an area outside the
action's affected area. Mitigating some percentage of unavoidable
impacts through measures that minimize, rectify, and reduce losses over
time is often appropriate and practicable, but the costs or
difficulties of mitigation may rise rapidly thereafter to achieve the
mitigation planning goal entirely within the action's affected area. In
such cases, a lesser or equivalent effort applied in another area may
achieve greater benefits for the evaluation species. Likewise, the
effort necessary to mitigate the impacts to a habitat of low
suitability and low importance of a type that is relatively abundant in
the landscape context (low-value habitat) will more likely achieve
sustainable benefits for an evaluation species if invested in enhancing
a habitat of moderate suitability and high importance. This policy is
designed to apply the various types of mitigation where they may
achieve the greatest efficiency toward accomplishing the mitigation
planning goal.
The Service encourages proponents to offset unavoidable resource
losses in advance of their actions. Further, the Service considers the
banking of habitat value for the express purpose of compensating for
future unavoidable losses to be a legitimate form of mitigation,
provided that withdrawals from a mitigation/conservation bank are
commensurate with losses of habitat value (considering suitability and
importance) for the evaluation species and not based solely upon the
affected habitat acreage or the cost of land purchase and management.
Resource losses compensated through purchase of conservation or
mitigation bank credits may include, but are not limited to, habitat
impacts to species covered by one or more Service authorities.
The mechanisms for delivering compensatory mitigation differ
according to: (1) Who is ultimately
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responsible for the success of the mitigation (the action proponent or
a third party); (2) whether the mitigation site is within or adjacent
to the impact site (on-site) or at another location that provides
either equivalent or additional resource value (offsite); and (3) when
resource benefits are secured (before or after resource impacts occur).
Regardless of the delivery mechanism, species conservation strategies
and other landscape-level conservation plans that are based on the best
scientific information available are expected to provide the basis for
establishing and operating compensatory mitigation sites and programs.
Such strategies and plans should also inform the assessment of species-
specific impacts and benefits within a defined geography. The Service
will ensure the application of equivalent ecological, procedural, and
administrative standards for all compensatory mitigation mechanisms. As
outlined by DM 6.6 C, this means that compensatory mitigation measures
will maximize the benefit to impacted resources; implement and earn
credits in advance of impacts; reduce risk to achieving effectiveness;
use transparent methodologies; and use mitigation measures with
equivalent standards that clearly identify responsible parties and that
establish monitoring. Mitigation options delivered through any
compensatory mitigation mechanism must incorporate, address, or
identify the following that are intended to ensure successful
implementation and durability:
a. Type of resource(s) and/or its values(s), service(s) and
function(s), and amount(s) of such resources to be provided (usually
expressed in acres or some other physical measure), the method of
compensation (restoration, establishment, preservation, etc.), and the
manner in which a landscape-scale approach has been considered;
b. factors considered during the site selection process;
c. site protection instruments to ensure the durability of the
measure;
d. baseline information;
e. the mitigation value of such resources (usually expressed as a
number of credits or other units of value), including a rationale for
such a determination;
f. a mitigation work plan including the geographic boundaries of
the measure, construction methods, timing, and other considerations;
g. a maintenance plan;
h. performance standards to determine whether the measure has
achieved its intended outcome;
i. monitoring requirements;
j. long-term management commitments;
k. adaptive management commitments; and
l. financial assurance provisions that are sufficient to ensure,
with a high degree of confidence, that the measure will achieve and
maintain its intended outcome, in accordance with the measure's
performance standards.
Multiple mechanisms may be used to provide compensatory mitigation,
including habitat credit exchanges and other emerging mechanisms.
Proponent-responsible mitigation, mitigation/conservation banks, and
in-lieu fee funds are the three most common mechanisms. Descriptions of
their general characteristics follow:
a. Proponent-Responsible Mitigation. A proponent-responsible
mitigation site provides ecological functions and services in
accordance with Service-defined or -approved standards to offset the
habitat impacts of a proposed action on particular species. As its name
implies, the action proponent is solely responsible for ensuring that
the compensatory mitigation activities are completed and successful.
Proponent-responsible mitigation may occur on-site or off-site relative
to action impacts. Like all compensatory mitigation measures,
proponent-responsible mitigation should: (a) Maximize the benefit to
impacted resources and their values, services, and functions; (b)
implement and earn credits in advance of project impacts; and (c)
reduce risk to achieving effectiveness.
b. Mitigation/Conservation Banks. A conservation bank is a site or
suite of sites that provides ecological functions and services
expressed as credits that are conserved and managed in perpetuity for
particular species and are used expressly to offset impacts occurring
elsewhere to the same species. A mitigation bank is established to
offset impacts to wetland habitats under section 404 of the Clean Water
Act. Some mitigation banks may also serve the species-specific purposes
of a conservation bank. Mitigation and conservation banks are typically
for-profit enterprises that apply habitat restoration, creation,
enhancement, and/or preservation techniques to generate credits on
their banking properties. The establishment, operation, and use of a
conservation bank requires a conservation bank agreement between the
Service and the bank sponsor, and aquatic resource mitigation banks
require a banking instrument approved by the U.S. Army Corps of
Engineers. Responsibility for ensuring that compensatory mitigation
activities are successfully completed is transferred from the action
proponent to the bank sponsor at the time of the sale/transfer of
credits. Mitigation and conservation banks generally provide mitigation
in advance of impacts.
c. In-Lieu Fee. An in-lieu fee site provides ecological functions
and services expressed as credits that are conserved and managed for
particular species or habitats, and are used expressly to offset
impacts occurring elsewhere to the same species or habitats. In-lieu
fee programs are sponsored by governmental or non-profit entities that
collect funds used to establish in-lieu fee sites. In-lieu fee program
operators apply habitat restoration, creation, enhancement, and/or
preservation techniques to generate credits on in-lieu fee sites. The
establishment, operation, and use of an in-lieu fee program may require
an agreement between regulatory agencies of applicable authority,
including the Service, and the in-lieu fee program operator.
Responsibility for ensuring that compensatory mitigation activities are
successfully completed is transferred from the action proponent to the
in-lieu fee program operator at the time of sale/transfer of credits.
Unlike mitigation or conservation banks, in-lieu fee programs generally
provide compensatory mitigation after impacts have occurred. See
section 5.7.2 for discussion of the Service's preference for
compensatory mitigation that occurs prior to impacts.
Research and education, although important to the conservation of
many resources, are not typically considered compensatory mitigation.
This is because they do not, by themselves, replace impacted resources
or adequately compensate for adverse effects to species or habitat. In
rare circumstances, research or education that can be linked directly
to threats to the resource and provide a quantifiable benefit to the
resource may be included as part of a mitigation package. These
circumstances may include: (a) When the major threat to a resource is
something other than habitat loss; (b) when the Service can reasonably
expect the benefits of applying the research or education results to
more than offset the impacts; (c) where there is an adaptive management
approach wherein the results/recommendations of the research will then
be applied to improve mitigation of the impacts of the project or
proposal; or (d) there are no other reasonable options for mitigation.
5.7. Recommendations
Consistent with applicable authorities, the policy's fundamental
principles, and the mitigation planning
[[Page 12392]]
principles described herein, the Service will provide recommendations
to mitigate the impacts of proposed actions at the earliest practicable
stage of planning to ensure maximum consideration. The Service will
develop mitigation recommendations in cooperation with the action
proponent and/or the applicable authorizing agency, considering the
cost estimates and other information that the proponent/agency provides
about the action and its effects, and relying on the best scientific
information available. Service recommendations will represent our best
judgment as to the most practicable means of ensuring that a proposed
action improves or, at minimum maintains, the current status of the
affected resources. The Service will provide mitigation recommendations
under an explicit expectation that the action proponent or the
applicable authorizing agency is fully responsible for implementing or
enforcing the recommendations.
The Service will strive to provide mitigation recommendations,
including reasonable alternatives to the proposed action, which, if
fully and properly implemented, would achieve the best possible outcome
for affected resources while also achieving the stated purpose of the
proposed action. However, on a case-by-case basis, the Service may
recommend the ``no action'' alternative. For example, when appropriate
and practicable means of avoiding significant impacts to high-value
habitats and associated species are not available, the Service may
recommend the ``no action'' alternative.
5.7.1. Preferences
Unless action-specific circumstances warrant otherwise, the Service
will observe the following preferences in providing mitigation
recommendations or requirements:
Advance compensatory mitigation. When compensatory mitigation is
necessary, the Service prefers compensatory mitigation measures that
are implemented and earn credits in advance of project impacts. The
extent of the compensatory measures that are not completed until after
action impacts occur will account for the interim loss of resources
consistent with the assessment principles (section 5.3).
Compensatory mitigation in relation to landscape strategies and
plans. The preferred location for Service-recommended or required
compensatory mitigation measures is within the boundaries of an
existing strategically planned, interconnected conservation network
that serves the conservation objectives for the affected resources in
the relevant landscape context. Compensatory measures should enhance
habitat connectivity or contiguity, or strategically improve targeted
ecological functions important to the affected resources (e.g., enhance
the resilience of fish and wildlife populations challenged by the wide-
spread stressors of climate change).
Similarly, Service-recommended or required mitigation should
emphasize avoiding impacts to habitats located within a planned
conservation network, consistent with the Habitat Valuation guidance
(section 5.5).
Where existing conservation networks or landscape conservation
plans are not available for the affected resources, Service personnel
should develop mitigation recommendations and requirements based on
best available scientific information and professional judgment that
would maximize the effectiveness of the mitigation measures for the
affected resources, consistent with this policy's guidance on
Integrating Mitigation Planning with Conservation Planning (section
5.1).
5.7.2. Recommendations for Locating Mitigation on Public or Private
Lands
When appropriate as specified in this policy, the Service may
recommend establishing compensatory mitigation at locations on private,
public, or tribal lands that provide the maximum conservation benefit
for the affected resources. The Service will generally, but not always,
recommend compensatory mitigation on lands with the same ownership
classification as the lands where impacts occurred, e.g., impacts to
evaluation species on private lands are generally mitigated on private
lands and impacts to evaluation species on public lands are generally
mitigated on public lands. However, most private lands are not
permanently dedicated to conservation purposes, and are generally the
most vulnerable to impacts resulting from land and water resources
development actions; therefore, mitigating impacts to any type of land
ownership on private lands is usually acceptable as long as they are
durable. Locating compensatory mitigation on public lands for impacts
to evaluation species on private lands is also possible, and in some
circumstances may best serve the conservation objectives for evaluation
species. Such compensatory mitigation options require careful
consideration and justification relative to the Service's mitigation
planning goal, as described below.
The Service generally only supports locating compensatory
mitigation on (public or private) lands that are already designated for
the conservation of natural resources if additionality (see section 6,
Definitions) is clearly demonstrated and is legally attainable. In
particular, the Service usually does not support offsetting impacts to
private lands by locating compensatory mitigation on public lands
designated for conservation purposes because this practice risks a
long-term net loss in landscape capacity to sustain species by relying
increasingly on public lands to serve conservation purposes. However,
the Service acknowledges that public ownership does not automatically
confer long-term protection and/or management for evaluation species in
all cases, which may justify locating compensatory mitigation measures
on public lands, including compensation for impacts to evaluation
species on public or private lands. The Service may recommend
compensating for private-land impacts to evaluation species on public
lands (whether designated for conservation of natural resources or not)
when:
a. Compensation is an appropriate means of achieving the mitigation
planning goal, as specified in this policy;
b. the compensatory mitigation would provide additional
conservation benefits above and beyond measures the public agency is
foreseeably expected to implement absent the mitigation (Only such
additional benefits are counted towards achieving the mitigation
planning goal.);
c. the additional conservation benefits are durable, i.e., lasting
as long as the impacts that prompted the compensatory mitigation;
d. consistent with and not otherwise prohibited by all relevant
statutes, regulations, and policies; and
e. the public land location would provide the best possible
conservation outcome, such as when private lands suitable for
compensatory mitigation are unavailable or are available but do not
provide an equivalent or greater contribution towards offsetting the
impacts to meet the mitigation planning goal for the evaluation
species.
Ensuring the durability of compensatory mitigation on public lands
may require multiple tools beyond land use plan designations, including
right-of-way grants, withdrawals, disposal or lease of land for
conservation, conservation easements, cooperative agreements, and
agreements with third parties. Mechanisms to ensure durability of land
protection for compensatory mitigation on public and private lands vary
among agencies, but should preclude conflicting uses and ensure that
protection and management of the mitigation land is commensurate
[[Page 12393]]
with the magnitude and duration of impacts.
When the public lands under consideration for use as compensatory
mitigation for impacts on private lands are National Wildlife Refuge
System (NWRS) lands, additional considerations covered in the Service's
Final Policy on the NWRS and Compensatory Mitigation Under the Section
10/404 Program (64 FR 49229-49234, September 10, 1999) may apply. Under
that policy, the Regional Director will recommend the mitigation plan
proposing to site compensatory mitigation on NWRS lands to the Director
for approval.
5.7.3. Recommendations Related to Recreation
Mitigation for impacts to recreational uses of wildlife and
habitat. The Service will generally not recommend measures intended to
increase recreational value as mitigation for habitat losses. The
Service may address impacts to recreational uses that are not otherwise
addressed through habitat mitigation, but will do so with separate and
distinct recreational use mitigation recommendations.
Recreational use of mitigation lands. Consistent with applicable
statutes, the Service supports those recreational uses on mitigation
lands that are compatible with the conservation goals of those
mitigation lands. If certain uses are incompatible with the
conservation goals for the mitigation lands, the Service will recommend
against such uses.
5.8. Documentation
The Service should advise action proponents and decision-making
agencies at timely stages of the planning process. To ensure effective
consideration of Service recommendations, it is generally possible to
communicate key concerns that will inform our recommendations early in
the mitigation planning process, communicate additional components
during and following an initial assessment of effects, and provide
final written recommendations toward the end of the process, but in
advance of a final decision for the action. The following outline lists
the components applicable to these three planning stages. Because
actions vary substantially in scope and complexity, these stages may
extend over a period of years or occur almost simultaneously, which may
necessitate consolidating some of the components listed below. For all
actions, the level of the Service's analysis and documentation should
be commensurate with the scope and severity of the potential impacts to
resources.
A. Early Planning
1. Inform the proponent of the Service's goal to improve or, at
minimum, maintain the status of affected resources, and that the
Service will identify opportunities for a net conservation gain if
required or appropriate.
2. Coordinate key data collection and planning decisions with the
proponent, relevant tribes, and Federal and State resource agencies;
including, but not limited to:
a. Delineate the affected area;
b. define the planning horizon;
c. identify species that may occur in the affected area that the
Service is likely to consider as evaluation species for mitigation
planning;
d. identify landscape-scale strategies and conservation plans and
objectives that pertain to these species and the affected area;
e. define surveys, studies, and preferred methods necessary to
inform effects analyses; and
f. as necessary, identify reasonable alternatives to the proposed
action that may achieve the proponent's purpose and the Service's no-
net-loss goal for resources.
3. As early as possible, inform the proponent of the presence of
probable high-value habitats in the affected area (see Section 5.5),
and advise the proponent of Service policy to avoid all impacts to such
habitats.
B. Effects Assessment
1. Coordinate selection of evaluation species with relevant tribes,
Federal and State resource agencies, and action proponents.
2. Communicate the Service's assessment of the value of affected
habitats to evaluation species.
3. If high-value habitats are affected, advise the proponent of the
Service's policy to avoid all impacts to such habitats.
4. Assess action effects to evaluation species and their habitats.
5. Formulate mitigation options that would achieve the mitigation
policy goal (an appropriate net conservation gain or, at minimum, no
net loss) in coordination with the proponent and relevant tribes, and
Federal and State resource agencies.
C. Final Recommendations
The Service's final mitigation recommendations should communicate
in writing the following:
1. The authorities under which the Service is providing the
mitigation recommendations consistent with this policy.
2. A description of all mitigation measures that the Service
believes are reasonable and appropriate to ensure that the proposed
action improves or, at minimum, maintains the current status of
affected fish, wildlife, plants, and their habitats.
3. The following elements should be specified within a mitigation
plan or equivalent by either the Service, action proponents, or in
collaboration:
a. Measurable objectives;
b. implementation assurances, including financial, as applicable;
c. effectiveness monitoring;
d. additional adaptive management actions as may be indicated by
monitoring results; and
e. reporting requirements.
4. An explanation of the basis for the Service recommendations,
including, but not limited to:
a. Evaluation species used for mitigation planning;
b. the assessed value (high, moderate, low) of affected habitats to
evaluation species;
c. predicted adverse and beneficial effects of the proposed action;
d. predicted adverse and beneficial effects of the recommended
mitigation measures; and
e. the rationale for our determination that the proposed action, if
implemented with Service recommendations, would achieve the mitigation
policy goal.
5. The Service's expectations of the proponent's responsibility to
implement the recommendations.
5.9. Follow-up
The Service encourages, supports, and will initiate, whenever
practicable, post-action monitoring studies and evaluations to
determine the effectiveness of recommendations in achieving the
mitigation planning goal. In those instances where Service personnel
determine that action proponents have not carried out those agreed-upon
mitigation means and measures, the Service will request that the
parties responsible for regulating the action initiate corrective
measures, or will initiate access to available assurance measures.
These provisions also apply when the Service is the action proponent.
6. Definitions
Definitions in this section apply to the implementation of this
policy and were developed to provide clarity and consistency within the
policy itself, and to ensure broad, general applicability to all
mitigation processes in which the
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Service engages. Some Service authorities define some of the terms in
this section differently or more specifically, and the definitions
herein do not substitute for statutory or regulatory definitions in the
exercise of those authorities.
Action. An activity or program implemented, authorized, or funded
by Federal agencies; or a non-Federal activity or program for which one
or more of the Service's authorities apply to make mitigation
recommendations, specify mitigation requirements, or provide technical
assistance for mitigation planning.
Additionality. A compensatory mitigation measure is additional when
the benefits of a compensatory mitigation measure improve upon the
baseline conditions of the impacted resources and their values,
services, and functions in a manner that is demonstrably new and would
not have occurred without the compensatory mitigation measure.
Affected area. The spatial extent of all effects, direct and
indirect, of a proposed action to fish, wildlife, plants, and their
habitats.
Affected resources. Those resources, as defined by this policy,
that are subject to the adverse effects of an action.
Compensatory mitigation. Compensatory mitigation means to
compensate for remaining unavoidable impacts after all appropriate and
practicable avoidance and minimization measures have been applied, by
replacing or providing substitute resources or environments (See 40 CFR
1508.20.) through the restoration, establishment, enhancement, or
preservation of resources and their values, services, and functions.
Impacts are authorized pursuant to a regulatory or resource management
program that issues permits, licenses, or otherwise approves
activities. In this policy, ``mitigation'' is a deliberate expression
of the full mitigation hierarchy, and ``compensatory mitigation''
describes only the last phase of that sequence.
Conservation. In the context of this policy, the noun
``conservation'' is a general label for the collective practices,
plans, policies, and science that are used to protect and manage
species and their habitats to achieve desired outcomes.
Conservation objective. A measurable expression of a desired
outcome for a species or its habitat resources. Population objectives
are expressed in terms of abundance, trend, vital rates, or other
measurable indices of population status. Habitat objectives are
expressed in terms of the quantity, quality, and spatial distribution
of habitats required to attain population objectives, as informed by
knowledge and assumptions about factors influencing the ability of the
landscape to sustain species.
Conservation planning. The identification of strategies for
achieving conservation objectives. Conservation plans include, but are
not limited to, recovery plans, habitat conservation plans, watershed
plans, green infrastructure plans, and others developed by Federal,
tribal, State, or local government agencies or non-governmental
organizations. This policy emphasizes the use of landscape-scale
approaches to conservation planning.
Durability. A mitigation measure is durable when the effectiveness
of the measure is sustained for the duration of the associated impacts
of the action, including direct and indirect impacts.
Effects. Changes in environmental conditions that are relevant to
the resources covered by this policy.
Direct effects are caused by the action and occur at the same time
and place.
Indirect effects are caused by the action, but occur at a later
time and/or another place.
Cumulative effects are caused by other actions and processes, but
may refer also to the collective effects on a resource, including
direct and indirect effects of the action. The causal agents and
spatial/temporal extent for considering cumulative effects varies
according to the authority(ies) under which the Service is engaged in
mitigation planning (e.g., refer to the definitions of cumulative
effects and cumulative impacts in ESA regulations and NEPA,
respectively), and the Service will apply statute-specific definitions
in the application of this policy.
Evaluation species. Fish, wildlife, and plant resources in the
affected area that are selected for effects analysis and mitigation
planning.
Habitat. An area with spatially identifiable physical, chemical,
and biological attributes that supports one or more life-history
processes for evaluation species. Mitigation planning should delineate
habitat types in the affected area using a classification system that
is applicable to both the region(s) of the affected area and the
selected evaluation species in order to facilitate determinations of
habitat scarcity, suitability, and importance.
Habitat value. An assessment of an affected habitat with respect to
an evaluation species based on three attributes--scarcity, suitability,
and importance--which define its conservation value to the evaluation
species in the context of this policy. The three parameters are
assessed independently but are sometimes correlated. For example, rare
or unique habitat types of high suitability for evaluation species are
also very likely of high importance in achieving conservation
objectives.
Impacts. In the context of this policy, impacts are adverse effects
relative to the affected resources.
Importance. The relative significance of the affected habitat,
compared to other examples of a similar habitat type in the landscape
context, to achieving conservation objectives for the evaluation
species. Habitats of high importance are irreplaceable or difficult to
replace, or are critical to evaluation species by virtue of their role
in achieving conservation objectives within the landscape (e.g.,
sustain core habitat areas, linkages, ecological functions). Areas
containing habitats of high importance are generally, but not always,
identified in conservation plans addressing resources under Service
authorities (e.g., in recovery plans) or when appropriate, under
authorities of partnering entities (e.g., in State wildlife action
plans, Landscape Conservation Cooperative conservation ``blueprints,''
etc.).
Landscape. An area encompassing an interacting mosaic of ecosystems
and human systems that is characterized by a set of common management
concerns. The most relevant concerns to the Service and this policy are
those associated with the conservation of species and their habitats.
The landscape is not defined by the size of the area, but rather the
interacting elements that are meaningful to the conservation objectives
for the resources under consideration.
Landscape-scale approach. For the purposes of this policy, the
landscape-scale approach applies the mitigation hierarchy for impacts
to resources and their values, services, and functions at the relevant
scale, however, narrow or broad, necessary to sustain, or otherwise
achieve, established goals for those resources and their values,
services, and functions. A landscape-scale approach should be used when
developing and approving strategies or plans, reviewing projects, or
issuing permits. The approach identifies the needs and baseline
conditions of targeted resources and their values, services, and
functions, reasonably foreseeable impacts, cumulative impacts of past
and likely projected disturbance to those resources, and future
disturbance trends. The approach then uses such information to identify
priorities for avoidance, minimization, and
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compensatory mitigation measures across that relevant area to provide
the maximum benefit to the impacted resources and their values,
services, and functions, with full consideration of the conditions of
additionality and durability.
Landscape-scale strategies and plans. For the purposes of this
policy, landscape-scale strategies and plans identify clear management
objectives for targeted resources and their values, services, and
functions at landscape-scales, as necessary, including across
administrative boundaries, and employ the landscape-scale approach to
identify, evaluate, and communicate how mitigation can best achieve
those management objectives. Strategies serve to assist project
applicants, stakeholders, and land managers in pre-planning as well as
to inform NEPA analysis and decision making, including decisions to
develop and approve plans, review projects, and issue permits. Land use
planning processes provide opportunities for identifying, evaluating,
and communicating mitigation in advance of anticipated land use
activities. Consistent with their statutory authorities, land
management agencies may develop landscape-scale strategies through the
land use planning process, or incorporate relevant aspects of
applicable and existing landscape-scale strategies into land use plans
through the land use planning process.
Mitigation. In the context of this policy, the noun ``mitigation''
is a label for all types of measures (see Mitigation Types) that a
proponent would implement toward achieving the Service's mitigation
goal.
Mitigation hierarchy. The elements of mitigation, summarized as
avoidance, minimization, and compensation, provide a sequenced approach
to addressing the foreseeable impacts to resources and their values,
services, and functions. First, impacts should be avoided by altering
project design, location, or declining to authorize the project; then
minimized through project modifications and permit conditions; and,
generally, only then compensated for remaining unavoidable impacts
after all appropriate and practicable avoidance and minimization
measures have been applied.
Mitigation planning. The process of assessing the effects of an
action and formulating mitigation measures that would achieve the
mitigation planning goal.
Mitigation goal. The Service's goal for mitigation is to improve
or, at minimum, maintain the current status of affected resources, as
allowed by applicable statutory authority and consistent with the
responsibilities of action proponents under such authority.
Mitigation types. General classes of methods for mitigating the
impacts of an action (Council on Environmental Quality, 40 CFR
1508.20(a-e)), including:
(a) Avoid the impact altogether by not taking the action or parts
of the action;
(b) minimize the impact by limiting the degree or magnitude of the
action and its implementation;
(c) rectify the impact by repairing, rehabilitating, or restoring
the affected environment;
(d) reduce or eliminate the impact over time by preservation and
maintenance operations during the life of the action; and
(e) compensate for the impact by replacing or providing substitute
resources or environments.
These five mitigation types, as enumerated by CEQ, are compatible
with this policy; however, as a practical matter, the mitigation
elements are categorized into three general types that form a sequence:
avoidance, minimization, and compensation for remaining unavoidable
(also known as residual) impacts. Section 5.6 (Mitigation Means and
Measures) of this policy provides expanded definitions and examples for
each of the mitigation types.
Practicable. Available and capable of being done after taking into
consideration existing technology, logistics, and cost in light of a
mitigation measure's beneficial value and a land use activity's overall
purpose, scope, and scale.
Proponent. The agency(ies) proposing an action, and if applicable,
any applicant(s) for agency funding or authorization to implement a
proposed action.
Resources. Fish, wildlife, plants, and their habitats for which the
Service has authority to recommend or require the mitigation of impacts
resulting from proposed actions.
Scarcity. The relative spatial extent (e.g., rare, common, or
abundant) of the habitat type in the landscape context.
Suitability. The relative ability of the affected habitat to
support one or more elements of the evaluation species' life history
(reproduction, rearing, feeding, dispersal, migration, hibernation, or
resting protected from disturbance, etc.) compared to other similar
habitats in the landscape context. A habitat's ability to support an
evaluation species may vary over time.
Unavoidable. An impact is unavoidable when an appropriate and
practicable alternative to the proposed action that would not cause the
impact is not available.
Appendix A. Authorities and Direction for Service Mitigation
Recommendations
A. Relationship of Service Mitigation Policy to Other Policies,
Regulations
This section is intended to describe the interaction of existing
policies and regulations with this policy in agency processes.
Descriptions regarding the application of mitigation concepts
generally, and elements of this policy specifically, for each of the
listed authorities follow.
1. The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d)
(Eagle Act)
The Eagle Act prohibits take of bald eagles and golden eagles
except pursuant to Federal regulations. The Eagle Act regulations at
title 50, part 22 of the Code of Federal Regulations (CFR), define
the ``take'' of an eagle to include the following actions: ``pursue,
shoot, shoot at, poison, wound, kill, capture, trap, collect,
destroy, molest, or disturb'' (Sec. 22.3).
Except for protecting eagle nests, the Eagle Act does not
directly protect eagle habitat. However, because disturbing eagles
is a violation of the Act, some activities within eagle habitat,
including some habitat modification, can result in illegal take in
the form of disturbance. ``Disturb'' is defined as ``to agitate or
bother a bald or golden eagle to a degree that causes, or is likely
to cause, based on the best scientific information available, (1)
injury to an eagle, (2) a decrease in its productivity, by
substantially interfering with normal breeding, feeding, or
sheltering behavior, or (3) nest abandonment, by substantially
interfering with normal breeding, feeding, or sheltering behavior.''
The Eagle Act allows the Secretary of the Interior to authorize
certain otherwise prohibited activities through regulations. The
Service is authorized to prescribe regulations permitting the
taking, possession, and transportation of bald and golden eagles
provided such permits are ``compatible with the preservation of the
bald eagle or the golden eagle'' (16 U.S.C. 668a). Permits are
issued for scientific and exhibition purposes; religious purposes of
Native American tribes; falconry (golden eagles, only); depredation;
protection of health and safety; removal of nests for resource
development and recovery (golden eagles, only); and nonpurposeful
(incidental) take.
The regulations for eagle nest take permits and eagle
nonpurposeful take permits explicitly provide for mitigation,
although the form and methods of mitigation are not specified, nor
do the regulations contain criteria stipulating thresholds for when
compensatory mitigation is required. The Eagle Act requires
mitigation in the form of avoidance and minimization for these
permits by restricting permitted take to circumstances where take is
``necessary.'' Though eagle habitat is not directly protected by the
Eagle Act, the statute and implementing regulations allow the
Service to require habitat preservation and/or enhancement as
compensatory mitigation for eagle take.
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Eagle take permits of all types are also subject to the
requirement that any take that would exceed take thresholds
established within geographic eagle management units (EMUs) must be
offset by mitigation that will essentially replace each eagle taken.
For example, if, under an eagle nonpurposeful take permit, a project
is expected to kill an average of three eagles over a 5-year period,
and take thresholds have been met in that EMU, the permittee must
provide compensatory mitigation that prevents three eagles from
being taken by another activity. At the time this Appendix A is
being written, take thresholds for golden eagles are set at zero
throughout the United States because golden eagle populations appear
to be stable but not increasing, and as such unable to withstand
additional take while still maintaining current numbers of breeding
pairs over time. Accordingly, all permits for golden eagle take that
would result in cumulative take within the EMU at levels above the
2009 baseline must incorporate compensatory mitigation. Permittees
may be required to provide compensatory mitigation designed to
improve conditions for eagles including habitat preservation or
enhancement of prey base.
2. Clean Water Act (33 U.S.C. 1251 et seq.)
Several locations within the statute under section 404 describe
the responsibilities and roles of the Service. The authority at
section 404(m) is most directly relevant to the Service's engagement
of Clean Water Act permitting processes to secure mitigation for
impacts to aquatic resources nationwide and is routinely used by
Ecological Services Field Offices. At section 404(m), the Secretary
of the Army is required to notify the Secretary of the Interior,
through the Service Director, that an individual permit application
has been received or that the Secretary proposes to issue a general
permit. The Service will submit any comments in writing to the
Secretary of the Army (Corp of Engineers) within 90 days. The
Service has the opportunity to engage several thousand Corps permit
actions affecting aquatic habitats and wildlife annually and to
assist the Corps of Engineers in developing permit terms that avoid,
minimize, or compensate for permitted impacts. The Department of the
Army has also entered into a Memorandum of Agreement with the
Department of the Interior under Section 404(q) of the Clean Water
Act. The current Memorandum of Agreement, signed in 1992, provides
procedures for elevating national or regional issues relating to
resources, policy, procedures, or regulation interpretation.
3. Endangered Species Act of 1973, as Amended (16 U.S.C. 1531 et
seq.)
A primary purpose of the Endangered Species Act (ESA) of 1973 as
amended (16 U.S.C. 1531 et seq.) is to conserve the ecosystems upon
which species listed as endangered and threatened depend. Conserving
listed species involves the use of all methods and procedures that
are necessary for their recovery, which includes mitigating the
impacts of actions to listed species and their habitats. All actions
must comply with the applicable prohibitions against taking
endangered animal species under ESA section 9 and taking threatened
animal species under regulations promulgated through ESA section
4(d). Under ESA section 7(a)(2), Federal agencies must consult with
the Service(s) to insure that any actions they fund, authorize, or
carry out are not likely to jeopardize the continued existence of
listed species or adversely modify designated critical habitat.
Federal agencies, and any permit or license applicants, may be
exempted from the prohibitions against incidental taking for actions
that are not likely to jeopardize the continued existence of the
species or result in the destruction or adverse modification of
designated critical habitat, if the terms and conditions of the
incidental take statement are implemented.
The Service may permit incidental taking resulting from a non-
Federal action under ESA section 10(a)(1)(B) after approving the
proponent's habitat conservation plan (HCP) under section
10(a)(2)(A). The HCP must specify the steps the permit applicant
will take to minimize and mitigate such impacts, and the funding
that will be available to implement such steps. The basis for
issuing a section 10 permit includes a finding that the applicant
will, to the maximum extent practicable, minimize and mitigate the
impacts of incidental taking; and a finding that the taking will not
appreciably reduce the likelihood of the survival and recovery of
the species in the wild.
This mitigation policy applies to all actions that may affect
ESA-protected resources except for conservation/recovery permits
under section 10(a)(1)(A). The Service will recommend mitigation for
impacts to listed species, designated critical habitat, and other
species for which the Service has authorized mitigation
responsibilities consistent with the guidance of this policy, which
proponents may adopt as conservation measures to be added to the
project descriptions of proposed actions. Such adoption may ensure
that actions are not likely to jeopardize species or adversely
modify designated critical habitat; however, such adoption alone
does not constitute compliance with the ESA. Federal agencies must
complete consultation per the requirements of section 7 to receive
Service concurrence with ``may affect, not likely to adversely
affect'' determinations, biological opinions for ``likely to
adversely affect'' determinations, and incidental take statement
terms and conditions. Proponents of actions that do not require
Federal authorization or funding must complete the requirements
under section 10(a)(2) to receive an incidental take permit. The
mitigation planning under this policy applies to all species and
their habitats for which the Service has authorities to recommend
mitigation on a particular action, including listed species and
critical habitat. Although this policy is intended, in part, to
clarify the role of mitigation in endangered species conservation,
nothing herein replaces, supersedes, or substitutes for the ESA
implementing regulations.
All forms of mitigation are potential conservation measures of a
proposed Federal action in the context of section 7 consultation and
are factored into Service analyses of the effects of the action,
including any voluntary mitigation measures proposed by a project
proponent that are above and beyond those required by an action
agency. Service regulations at 50 CFR 402.14(g)(8) affirm the need
to consider ``any beneficial actions'' in formulating a biological
opinion, including those ``taken prior to the initiation of
consultation.'' Because jeopardy and adverse modification analyses
weigh effects in the action area relative to the status of the
species throughout its listed range and to the status of all
designated critical habitat units, respectively, ``beneficial
actions'' may also include proposed conservation measures for the
affected species within its range but outside of the area of adverse
effects (e.g., compensation).
Mitigation measures included in proposed actions that avoid and
minimize the likelihood of adverse effects and incidental take are
also relevant to the Service's concurrence with ``may affect, not
likely to adversely affect'' determinations through informal
consultation. All mitigation measures included in proposed actions
that benefit listed species and/or designated critical habitat,
including compensatory measures, are relevant to jeopardy and
adverse modification conclusions in Service biological opinions.
Likewise, the Service may apply all forms of mitigation,
consistent with the guidance of this policy, in formulating a
reasonable and prudent alternative that would avoid jeopardy/adverse
modification, provided that it is also consistent with the
regulatory definition of a reasonable and prudent alternative at 50
CFR 402.02. It is preferable to avoid or minimize impacts to listed
species or critical habitat before rectifying, reducing over time,
or compensating for such impacts. Under some limited circumstances,
however, the latter forms of mitigation may provide all or part of
the means to achieving the best possible conservation outcome for
listed species consistent with the purpose-, authority-, and
feasibility-requirements of a reasonable and prudent alternative.
For Federal actions that are not likely to jeopardize the
continued existence of listed species or result in the destruction
or adverse modification of habitat, the Service may provide a
statement specifying those reasonable and prudent measures that are
necessary or appropriate to minimize the impacts of taking
incidental to such actions on the affected listed species. No
proposed mitigation measures relieve an action proponent of the
obligation to obtain incidental take exemption through an incidental
take statement (Federal actions) or authorization through an
incidental take permit (non-Federal actions), as appropriate, for
unavoidable incidental take that may result from a proposed action.
4. Executive Order 13186 (E.O. 13186), Responsibilities of Federal
Agencies To Protect Migratory Birds
E.O. 13186 directs Federal departments and agencies to avoid or
minimize adverse impacts on ``migratory bird resources,'' defined as
``migratory birds and the habitats upon which they depend.'' These
acts of
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avian protection and conservation are implemented under the auspices
of the MBTA, the Eagle Act, the Fish and Wildlife Coordination Act
(16 U.S.C. 661-666c), the Endangered Species Act, the National
Environmental Policy Act, and ``other established environmental
review process'' (Section 3(e)(6)). Additionally, E.O. 13186 directs
Federal agencies whose activities will likely result in measurable
negative effects on migratory bird populations to collaboratively
develop and implement an MOU with the Service that promotes the
conservation of migratory bird populations. These MOUs can clarify
how an agency can mitigate the effects of impacts and monitor
implemented conservation measures. MOUs can also define how
appropriate corrective measures can be implemented when needed, as
well as what proactive conservation actions or partnerships can be
formed to advance bird conservation, given the agency's existing
mission and mandate.
The Service policy regarding its responsibility to E.O. 13186
(720 FW 2) states ``all Service employees should: A. Implement their
mission-related activities and responsibilities in a way that
furthers the conservation of migratory birds and minimizes and
avoids the potential adverse effects of migratory bird take, with
the goal of eliminating take'' (22.A.). The policy also stipulates
that the Service will support the conservation intent of the
migratory bird conventions by: integrating migratory bird
conservation measures into our activities, including measures to
avoid or minimize adverse impacts on migratory bird resources;
restore and enhance the habitat of migratory birds; and prevent or
abate the pollution or detrimental alteration of the environment for
the benefit of migratory birds.
5. Executive Order 13653 (E.O. 13653), Preparing the United States
for the Impact of Climate Change
E.O. 13653 directs Federal agencies to improve the Nation's
preparedness and resilience to climate change impacts. The agencies
are to promote: (1) Engaged and strong partnerships and information
sharing at all levels of government; (2) risk-informed decision-
making and the tools to facilitate it; (3) adaptive learning, in
which experiences serve as opportunities to inform and adjust future
actions; and (4) preparedness planning.
Among the provisions under section 3, Managing Lands and Waters
for Climate Preparedness and Resilience, is this: ``agencies shall,
where possible, focus on program and policy adjustments that promote
the dual goals of greater climate resilience and carbon
sequestration, or other reductions to the sources of climate change
. . . [a]gencies shall build on efforts already completed or
underway . . . as well as recent interagency climate adaptation
strategies.'' Section 5 specifies that agencies shall develop or
continue to develop, implement, and update comprehensive plans that
integrate consideration of climate change into agency operations and
overall mission objectives.
The Priority Agenda: Enhancing The Climate Resilience of
American's Natural Resources (October 2014) called for in E.O.
13653, includes provisions to develop and provide decision support
tools for ``climate-smart natural resource management'' that will
improve the ability of agencies and landowners to manage for
resilience to climate change impacts.
The Service policy on climate change adaptation (056 FW 1)
states that the Service will ``effectively and efficiently
incorporate and implement climate change adaptation measures into
the Service's mission, programs, and operations.'' This includes
using the best available science to coordinate an appropriate
adaptive response to impacts on fish, wildlife, plants, and their
habitats. The policy also specifically calls for delivering
landscape conservation actions that build resilience or support the
ability of fish, wildlife, and plants to adapt to climate change.
6. Federal Power Act (16 U.S.C. 791-828c) (FPA)
The Federal Energy Regulatory Commission (FERC) authorizes non-
Federal hydropower projects pursuant to the FPA. The Service's roles
in hydropower project review are primarily defined by the FPA, as
amended in 1986 by the Electric Consumers Protection Act, that
explicitly ascribes those roles to the Service. The Service has
mandatory conditioning authority for projects on National Wildlife
Refuge System lands under section 4(e) and to prescribe fish passage
to enhance and protect native fish runs under section 18. Under
section 10(j), FERC is required to include license conditions that
are based on recommendations made pursuant to the Fish and Wildlife
Coordination Act by states, NOAA, and the Service for the adequate
and equitable protection, mitigation, and enhancement of fish,
wildlife, and their habitats.
7. Fish and Wildlife Conservation Act (16 U.S.C. 2901-2912)
Specifically, Federal Conservation of Migratory Nongame Birds
(16 U.S.C. 2912) implicitly provides for mitigation by requiring the
Service to ``identify the effects of environmental changes and human
activities on species, subspecies, and populations of all migratory
nongame birds'' (section 2912(2)); ``identify conservation actions
to assure that species, subspecies, and populations of migratory
nongame birds . . . do not reach the point at which the measures
provided pursuant to the Endangered Species Act of 1973, as amended
(16 U.S.C. 1531-1543) become necessary'' (section 2912(4)); and
``identify lands and waters in the United States and other nations
in the Western Hemisphere whose protection, management, or
acquisition will foster the conservation of species, subspecies, and
populations of migratory nongame birds . . . .'' (section 2912(5)).
8. Fish and Wildlife Coordination Act (16 U.S.C. 661-667e)(FWCA)
The FWCA requires Federal agencies developing water-related
projects to consult with the Service, NOAA, and the States regarding
fish and wildlife impacts. The FWCA establishes fish and wildlife
conservation as a coequal objective of all federally funded,
permitted, or licensed water-related development projects. Federal
action agencies are to include justifiable means and measures for
fish and wildlife, and the Service's mitigation and enhancement
recommendations are to be given full and equal consideration with
other project purposes. The Service's mitigation recommendations may
include measures addressing a broad set of habitats beyond the
aquatic impacts triggering the FWCA and taxa beyond those covered by
other resource laws. Action agencies are not bound by the FWCA to
implement Service conservation recommendations in their entirety.
9. Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
et seq.) (MMPA)
The MMPA prohibits the take (i.e., hunting, killing, capture,
and/or harassment) of marine mammals and enacts a moratorium on the
import, export, and sale of marine mammal parts and products. There
are exemptions and exceptions to the prohibitions. For example,
under section 101(b), Alaskan Natives may hunt marine mammals for
subsistence purposes and may possess, transport, and sell marine
mammal parts and products.
In addition, section 101(a)(5) allows for the authorization of
incidental, but not intentional, take of small numbers of marine
mammals by U.S. citizens while engaged in a specified activity
(other than commercial fishing) within a specified geographical
region, provided certain findings are made. Specifically, the
Service must make a finding that the total of such taking will have
a negligible impact on the marine mammal species and will not have
an unmitigable adverse impact on the availability of these species
for subsistence uses. Negligible impact is defined at 50 CFR
18.27(c) as ``an impact resulting from the specified activity that
cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual
rates of recruitment or survival.'' Unmitigable adverse impact,
which is also defined at 50 CFR 18.27(c), means ``an impact
resulting from the specified activity that is likely to reduce the
availability of the species to a level insufficient for a harvest to
meet subsistence needs by (i) causing the marine mammals to abandon
or avoid hunting areas, (ii) directly displacing subsistence users,
or (iii) placing physical barriers between the marine mammals and
the subsistence hunters; and (2) cannot be sufficiently mitigated by
other measures to increase the availability of marine mammals to
allow subsistence needs to be met.''
Section 101(a)(5)(A) provides for the promulgation of Incidental
Take Regulations (ITRs), which can be issued for a period of up to 5
years. The ITRs set forth permissible methods of taking pursuant to
the activity and other means of affecting the least practicable
adverse impact on the species or stock and its habitat, paying
particular attention to rookeries, mating grounds, and areas of
similar significance. In addition, ITRs include requirements
pertaining to the monitoring and reporting of such takings. Under
the ITRs, a U.S. citizen may request
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a Letter of Authorization (LOA) for activities proposed in
accordance with the ITRs. The Service evaluates each LOA request
based on the specific activity and geographic location, and
determines whether the level of taking is consistent with the
findings made for the total taking allowable under the applicable
ITRs. If so, the Service may issue an LOA for the project and will
specify the period of validity and any additional terms and
conditions appropriate to the request, including mitigation measures
designed to minimize interactions with, and impacts to, marine
mammals. The LOA will also specify monitoring and reporting
requirements to evaluate the level and impact of any taking.
Depending on the nature, location, and timing of a proposed
activity, the Service may require applicants to consult with
potentially affected subsistence communities in Alaska and develop
additional mitigation measures to address potential impacts to
subsistence users. Regulations specific to LOAs are codified at 50
CFR 18.27(f).
Section 101(a)(5)(D) established an expedited process to request
authorization for the incidental, but not intentional, take of small
numbers of marine mammals for a period of not more than 1 year if
the taking will be limited to harassment, i.e., Incidental
Harassment Authorizations (IHAs). Harassment is defined in section 3
of the MMPA (16 U.S.C. 1362). For activities other than military
readiness activities or scientific research conducted by or on
behalf of the Federal Government, harassment means ``any act of
pursuit, torment, or annoyance which (i) has the potential to injure
a marine mammal or marine mammal stock in the wild'' (the MMPA calls
this Level A harassment) ``or (ii) has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to
migration, breathing, nursing, breeding, feeding, or sheltering''
(the MMPA calls this Level B harassment). There is a separate
definition of harassment applied in the case of a military readiness
activity or a scientific research activity conducted by or on behalf
of the Federal Government. The IHA prescribes permissible methods of
taking by harassment and includes other means of achieving the least
practicable impact on marine mammal species or stocks and their
habitats, paying particular attention to rookeries, mating grounds,
and areas of similar significance. In addition, as appropriate, the
IHA will include measures that are necessary to ensure no
unmitigable adverse impact on the availability of the species or
stock for subsistence purposes in Alaska. IHAs also specify
monitoring and reporting requirements pertaining to the taking by
harassment.
ITRs and IHAs can provide considerable conservation and
management benefits to covered marine mammals. The Service shall
recommend mitigation for impacts to species covered by the MMPA that
are under its jurisdiction consistent with the guidance of this
policy. Proponents may adopt these recommendations as components of
proposed actions. However, such adoption itself does not constitute
full compliance with the MMPA.
10. Migratory Bird Treaty Act (16 U.S.C. 703-712) (MBTA)
The MBTA does not allow the take of migratory birds without a
permit or other regulatory authorization (e.g., rule, depredation
order). The Service has express authority to issue permits for
purposeful take and currently issues several types of permits for
purposeful take of individuals (e.g., hunting, depredation,
scientific collection). Hunting permits do not require the
mitigation hierarchy be enacted; rather, the Service sets annual
regulations that limit harvest to ensure levels harvested do not
diminish waterfowl breeding populations. For purposeful take permits
that are not covered in these annual regulations (e.g., depredation,
scientific collection), there is an expectation that take be avoided
and minimized to the maximum extent practicable as a condition of
the take authorization process. Compensation and offsets are not
required under these purposeful take permits, but can be accepted.
The Service has implied authority to permit incidental take of
migratory birds, though incidental take has only been authorized in
limited situations (e.g., Department of Defense Readiness Rule and
the NOAA Fisheries Special Purpose Permit). In all situations,
permitted or unpermitted, there is an expectation that take be
avoided and minimized to the maximum extent practicable, and
voluntary offsets can be employed to this end. However, the Service
cannot legally require or accept compensatory mitigation for
unpermitted, and thus illegal, take of individuals. While action
proponents are expected to reduce impacts to migratory bird habitat,
such impacts are not regulated under MBTA. As a result, action
proponents are allowed to use the full mitigation hierarchy to
manage impacts to their habitats, regardless of whether or not a
permit for take of individuals is in place. Assessments of action
effects should examine direct, indirect, and cumulative impacts to
migratory bird habitats, as habitat losses have been identified as a
critical factor in the decline of many migratory bird species.
11. National Environmental Policy Act (42 U.S.C. 4321 et seq.)
(NEPA)
NEPA requires Federal agencies to integrate environmental values
into decision making processes by considering impacts of their
proposed actions and reasonable alternatives. Agencies disclose
findings through Environmental Assessments or a detailed
Environmental Impact Statement and are required to identify and
include all relevant and reasonable mitigation measures that could
improve the action. The Council on Environmental Quality's
implementing regulations under NEPA define mitigation as a sequence,
where mitigation begins with avoidance of impacts; followed by
minimization of the degree or magnitude of impacts; rectification of
impacts through repair, restoration, or rehabilitation; reducing
impacts over time during the life of the action; and lastly,
compensation for impacts by providing replacement resources.
Effective mitigation through this ordered approach starts at the
beginning of the NEPA process, not at the end. Implementing
regulations require that the Service be notified of all major
Federal actions affecting fish and wildlife and our recommendations
solicited. Engaging this process allows the Service to provide
comments and recommendations for mitigation of fish and wildlife
impacts.
12. National Wildlife Refuge Mitigation Policy
The Service's Final Policy on the National Wildlife Refuge
System and Compensatory Mitigation under the section 10/404 Program
(64 FR 49229-49234, September 10, 1999) (Refuge Mitigation Policy)
published in 1999 establishes guidelines for the use of Refuge lands
for siting compensatory mitigation for impacts permitted through
section 404 of the Clean Water Act (CWA) and section 10 of the
Rivers and Harbors Act (RHA). The Refuge Mitigation Policy clarifies
that siting mitigation for off-Refuge impacts on Refuge lands is
appropriate only in limited and exceptional circumstances.
Mitigation banks may not be sited on Refuge lands, but the Service
may add closed banks to the Refuge system if specific criteria are
met. The Refuge Mitigation Policy, which explicitly addresses only
compensatory mitigation under the CWA and RHA, remains in effect and
is unaltered by this policy. However, the Service will evaluate all
proposals for using Refuge lands as sites for other compensatory
mitigation purposes using the criteria and procedures established
for aquatic resources in the Refuge Mitigation Policy (e.g., to
locate compensatory mitigation on Refuge property for off-Refuge
impacts to endangered or threatened species).
13. Natural Resource Damage Assessment and Restoration (NRDAR)
This policy applies to actions for which the Service is a
participating bureau, supporting the Department of the Interior,
during activities associated with assessment of injuries to natural
resources caused by oil spills or releases of hazardous materials,
under the Oil Pollution Act (33 U.S.C. 2701 et seq.) and the
Comprehensive Environmental Response, Compensation and Liability Act
(42 U.S.C. 9601), as amended by Public Law 99-499. When a release of
hazardous materials or an oil spill injures natural resources under
the jurisdiction of State, tribal, and Federal agencies, these
governments quantify the injuries to determine appropriate
restoration to compensate the public for losses of those resources
or their services.
A restoration settlement, in the form of damages provided
through a settlement document, is usually determined by quantifying
the type and amount of restoration necessary to offset the injury
caused by the spill or release. The type of restoration conducted
depends on the resources injured by the release (e.g., marine
habitats, ground water, or biological resources (fish, birds)).
The NRDAR program may impose constraints associated with the
Service's Mitigation Policy. Jurisdiction over natural resources
varies by agency, and the restoration portion of a given settlement
is often resolved jointly with other Federal/
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State/tribal trustees, thus requiring their approval of allocation
of funds for restoration projects. This policy will be used by the
Service to guide restoration projects that benefit Service resources
and as one mechanism to direct restoration planning toward goals
common to other trustees. Thus, the policy maintains the flexibility
to implement the appropriate restoration to compensate for the
injured resources under the jurisdiction of multiple government
agencies. This policy does not seek to inhibit discussions aimed at
achieving settlement, rather it seeks to offer flexibility while
defining compensatory projects by providing support for weighing or
modifying project elements to reach Service goals.
B. Additional Legislative Authorities
1. Clean Air Act; 42 U.S.C. 7401 et seq., as amended (See http://www.fws.gov/refuges/airquality/permits.html)
2. Marine Protection, Research, and Sanctuaries Act; 16 U.S.C. 1431
et seq. and 33 U.S.C. 1401 et seq.
3. Resource Conservation and Recovery Act; 42 U.S.C. 6901 et seq.
4. Shore Protection Act; 33 U.S.C. 2601 et seq.
5. Coastal Zone Management Act; 16 U.S.C. 1451 et seq.
6. Coastal Barrier Resources Act; 16 U.S.C. 3501
7. Surface Mining Control and Reclamation Act; 30 U.S.C. 1201 et
seq.
8. National Wildlife Refuge System Administration Act; 16 U.S.C.
668dd, as amended
9. National Historic Preservation Act; 16 U.S.C. 470f
10. Pittman-Roberts Wildlife Restoration Act; 16 U.S.C. 669-669k
11. Dingell-Johnson Sport Fish Restoration Act; 16 U.S.C. 777-777n,
except 777 e-1 and g-1
12. Federal Land and Policy Management Act, 43 U.S.C. 1701 et seq.
C. Implementing Regulations
1. National Environmental Policy Act (NEPA), 40 CFR part 1508, 42
U.S.C. 55
2. Marine Mammal Protection Act (MMPA), 50 CFR part 18, 16 U.S.C.
1361 et seq.
3. Migratory Bird Treaty Act (MBTA), 50 CFR part 21, 16 U.S.C. 703
et seq.
4. Bald and Golden Eagle Protection Act (Eagle Act), 50 CFR part 22,
16 U.S.C. 668 et seq.
5. Guidelines for Wetlands Protection, 33 CFR parts 320 and 332, 40
CFR part 230
6. Compensatory Mitigation for Losses of Aquatic Resources, 33 CFR
parts 325 and 332 (USACE) and 40 CFR part 230 (EPA), 33 U.S.C. 1344
7. Natural Resource Damage Assessments (OPA), 15 CFR part 990, 33
U.S.C. 2701 et seq.
8. Natural Resource Damage Assessments (CERCLA), 43 CFR part 11, 42
U.S.C. 9601
9. Endangered Species Act of 1973, as amended; 50 CFR parts 13, 17
(specifically Sec. Sec. 17.22, 17.32, 17.50), part 402; 16 U.S.C.
1531 et seq.
D. Executive Orders
1. Executive Order 13186, Responsibilities of Federal Agencies to
Protect Migratory Birds
2. Executive Order 12114, Environmental Effects Abroad of Major
Federal Actions, January 4, 1979
3. Executive Order 11988, Floodplain Management, May 24, 1977
4. Executive Order 11990, Protection of Wetlands, May 24, 1977
5. Executive Order 12898, Environmental Justice for Low Income and
Minority Populations, February 11, 1994
6. Executive Order 13514, Federal Leadership in Environmental,
Energy, and Economic Performance, October 5, 2009
7. Executive Order 13604, Improving Performance of Federal
Permitting and Review of Infrastructure Projects, March 22, 2012
E. Council on Environmental Quality (CEQ) Policy and Guidance
1. Guidance Regarding NEPA Regulations (48 FR 34236, July 28, 1983)
2. Designation of Non-Federal Agencies to be Cooperating Agencies in
Implementing the Procedural Requirements of the National
Environmental Policy Act (40 CFR 1508.5, July 28, 1999)
3. Cooperating Agencies in Implementing the Procedural Requirements
of the National Environmental Policy Act (January 30, 2002)
4. Memorandum, ``Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No
Significant Impact'' (January 14, 2011)
F. Department of the Interior Policy and Guidance
1. Department of the Interior National Environmental Policy Act
Procedures, 516 DM 1-7
2. Secretarial Order 3330, Improving Mitigation Policies and
Practices of the Department of the Interior (October 31, 2013)
3. Secretarial Order 3206, American Indian Tribal Rights, Federal-
Tribal Trust Responsibilities, and the Endangered Species Act (June
5, 1997)
4. Department of the Interior Climate Change Adaptation Policy, 523
DM 1
G. U.S. Fish and Wildlife Service (USFWS) Policy and Guidance
1. Service Responsibilities to Protect Migratory Birds, 720 FW 2
2. Final Policy on the National Wildlife Refuge System and
Compensatory Mitigation under the Section 10/404 Program, 64 FR
49229-49234, September 10, 1999
3. Habitat Conservation Planning and Incidental Take Permit
Processing Handbook, 61 FR 63854, 1996
4. USFWS National Environmental Policy Act Reference Handbook, 505
FW 1.7 and 550 FW 1
5. Endangered Species Act Habitat Conservation Planning Handbook
(with NMFS), 1996
6. Endangered Species Act Consultation Handbook (with NMFS), 1998
7. Inter-agency Memorandum of Agreement Regarding Oil Spill Planning
and Response Activities Under the Federal Water Pollution Control
Act's National Oil and Hazardous Substances Pollution Contingency
Plan and the Endangered Species Act, 2002
8. Guidance for the Establishment, Use, and Operation of
Conservation Banking, 2003
9. Endangered and Threatened Wildlife and Plants; Recovery Crediting
Guidance, 2008
10. Service Climate Change Adaptation Policy, 056 FW 1
H. Other Agency Policy, Guidance, and Actions Relevant to Service
Activities
1. Memorandum of Agreement Between The Department of the Army and
The Environmental Protection Agency, The Determination of Mitigation
under the Clean Water Act Section 404(b)(1) Guidelines, 1990
2. Federal Highway Administration, Consideration of Wetlands in the
Planning of Federal Aid Highways, 1990
3. Clean Water Act Section 404(q) Memorandum of Agreement Between
the Department of the Interior and the Department of the Army, 1992
4. Interagency Agreement between the National Park Service, Fish and
Wildlife Service, Bureau of Land Management, and the Federal
Aviation Administration Regarding Low-Level Flying Aircraft Over
Natural Resource Areas, 1993
5. USFWS Memorandum from Acting Director to Regional Directors,
Regarding ``Partners for Fish and Wildlife Program and NEPA
Compliance,'' 2002
6. Agreement between the U.S. Fish and Wildlife Service and the U.S.
Army Corps of Engineers for Conducting Fish and Wildlife
Coordination Act Activities, 2003
7. Memorandum of Agreement Between the U.S. Fish and Wildlife
Service and the U.S. Army Corps of Engineers, 2003
8. Partnership Agreement between the U.S. Army Corps of Engineers
and the U.S. Fish and Wildlife Service for Water Resources and Fish
and Wildlife, 2003
9. Memoranda of understanding with nine Federal agencies, under E.O.
13186, Responsibilities of Federal Agencies to Protect Migratory
Birds (http://www.fws.gov/migratorybirds/PartnershipsAndIniatives.html)
Appendix B. Service Mitigation Policy and NEPA
A. Mitigation in Environmental Review Processes
NEPA was enacted to promote efforts to prevent or eliminate
damage to the environment and biosphere (42 U.S.C. 4321). The NEPA
process is intended to help officials make decisions based on an
understanding of environmental consequences and take actions that
protect, restore, and enhance the environment (40 CFR part 1501). It
requires consideration of the impacts from connected, cumulative,
and similar actions, and their relationship to the maintenance and
enhancement of long-term productivity (42 U.S.C. 4332). Mitigation
measures should be developed that effectively and efficiently
address the
[[Page 12400]]
predicted and actual impacts, relative to the ability to maintain
and enhance long-term productivity. The consideration of mitigation
(type, timing, degree, etc.) should be consistent with and based
upon the evaluation of direct, indirect, and cumulative impacts. The
Service should also consider and encourage public involvement in
development of mitigation planning, including components such as
compliance and effectiveness monitoring, and adaptive management
processes.
Consistent with January 14, 2011 CEQ Memorandum: Appropriate Use
of Mitigation and Monitoring and Clarifying the Appropriate Use of
Mitigated Findings of No Significant Impacts, Service-proposed
actions should incorporate measures to avoid, minimize, rectify,
reduce, and compensate for impacts into initial proposal designs and
described as part of the action. Measures to achieve net gain or no-
net-loss outcomes have the greatest potential to achieve
environmentally preferred outcomes that are encouraged by the
memorandum, and measures to achieve net gain outcomes have the
greatest potential to enhance long-term productivity. We should
analyze mitigation measures considered, but not incorporated into
the proposed action, as one or more alternatives. For illustrative
purposes, our NEPA documents may address mitigation alternatives or
consider mitigation measures that the Service does not have legal
authority to implement. However, the Service should not commit to
mitigation alternatives or measures considered or analyzed without
sufficient legal authorities or sufficient resources to perform or
ensure the effectiveness of the mitigation (CEQ 2011). The Service
should monitor the compliance and effectiveness of our mitigation
commitments. For applicant-driven actions, some or most of the
responsibility for mitigation monitoring may lie with the applicant;
however, the Service retains the ultimate responsibility to ensure
that monitoring is occurring when needed and that the results of
monitoring are properly considered in an adaptive management
framework.
When carrying out its responsibilities under NEPA, the Service
will apply the mitigation meanings and sequence in the NEPA
regulations (40 CFR 1508.20). In particular, the Service will retain
the ability to distinguish between:
Minimizing impacts by limiting the degree or magnitude
of the action and its implementation;
rectifying the impact by repairing, rehabilitating, or
restoring the affected environment; and
reducing or eliminating the impact over time by
preservation and maintenance operations during the life of the
action.
Minimizing impacts under NEPA is commonly applied at the
planning design stage, prior to the action (and impacts) occurring.
Rectification and reduction over time are measures applied after the
action is implemented (even though they may be included in the
plan). Therefore, under NEPA, there are often very different
temporal scopes between minimization measures and those for
rectification and reduction over time. These temporal differences
can be important for developing and evaluating alternatives,
analyzing indirect and cumulative impacts, and for designing and
implementing effectiveness and compliance monitoring. Therefore, the
Service will retain the ability to distinguish between these three
mitigation types when doing so will improve the ability to take the
requisite NEPA ``hard look'' at potential environmental impacts and
reasonable alternatives to proposed actions.
Other statutes besides NEPA that compel the Service to address
the possible environmental impacts of mitigation activities for fish
and wildlife resources commonly include the National Historic
Preservation Act of 1996 (NHPA) (16 U.S.C 470 et seq.), as amended
in 1992, the Federal Water Pollution Control Act (Clean Water Act)
(33 U.S.C. 1251-1376), Fish and Wildlife Coordination Act (16 U.S.C
661-667(e)), as amended (FWCA), and the Clean Air Act (42 U.S.C.
7401-7661). Service mitigation decisions should also comply with all
applicable Executive Orders, including E.O. 13514, Federal
Leadership in Environmental, Energy, and Economic Performance
(October 5, 2009), E.O. 13653, Preparing the United States for the
Impacts of Climate Change (November 1, 2013), and E.O. 12898,
Federal Actions To Address Environmental Justice in Minority
Populations and Low-Income Populations. DOI Environmental Compliance
Memorandum (ECM) 95-3 provides additional direction regarding
responsibilities for addressing environmental justice under NEPA,
including the equity of benefits and risks distribution.
B. Efficient Mitigation Planning
The CEQ Regulations Implementing NEPA include provisions to
reduce paperwork (Sec. 1500.4), delay (Sec. 1505.5), duplication
with State and local procedures (Sec. 1506.2), and combine
documents in compliance with NEPA. A key component of the provisions
to reduce paperwork directs Federal agencies to use environmental
impact statements for programs, policies, or plans, and to tier from
statements of broad scope to those of narrower scope, in order to
eliminate repetitive discussions of the same issues (Sec.
1501.1(i), 1502.4, and 1502.20). To the fullest extent possible, the
Service should coordinate with State, tribal, local, and other
Federal entities to conduct joint mitigation planning, research, and
environmental review processes. Mitigation planning can also provide
efficiencies when it is used to reduce the impacts of a proposed
project to the degree it eliminates significant impacts and avoids
the need for an Environmental Impact Statement. When using this
approach, employing a mitigated Finding of No Significant Impact
(FONSI), the Service should ensure consistency with the
aforementioned January 14, 2011, CEQ memorandum.
Use of this mitigation policy will help focus our NEPA
discussion on issues for fish, wildlife, plants, and their habitats,
and will avoid unnecessarily lengthy background information. When
appropriate, the Service should use the process for establishing
evaluation species and resource categories to concentrate our
environmental analyses on relevant and significant issues.
Programmatic NEPA analyses can establish standards for
consideration and implementation of mitigation, and can more
effectively address cumulative impacts. To ensure that landscape-
scale mitigation planning is effectively implemented and meets
conservation goals, the Service should seek and consider
collaborative opportunities to conduct programmatic NEPA decision-
making processes on Service actions that are similar in timing,
impacts, alternatives, resources, and mitigation. Existing
landscape-scale conservation and mitigation plans that have already
undergone a NEPA process will provide efficiencies for Federal
actions taken on a project-specific basis and will also better
address potential cumulative impacts. However, the Service may
incorporate plans or components of plans by reference (40 CFR
1502.21), while addressing impacts from plans or components within
the NEPA process on the Service action.
C. NEPA and Tribal Trust Responsibilities
NEPA also provides a process through which all Tribal Trust
responsibilities can be addressed simultaneous to consultation, but
care should be taken to ensure that culturally sensitive information
is not disclosed. Resources that may be impacted by Service actions
or mitigation measures include culturally significant or sacred
landscapes, species associated with those landscapes, or species
that are separately considered culturally significant or sacred. The
Service should coordinate or consult with affected tribes to develop
methods for evaluating impacts, significance criteria, and
meaningful mitigation to sacred or culturally significant species
and their locales. Because climate change has been identified as an
Environmental Justice (EJ) issue for tribes, adverse climate change-
related effects to culturally significant or sacred landscapes or
species may be cumulatively greater, and may indicate the need for a
separate EJ analysis. Affected tribes can be those for which the
locale of the action or landscape mitigation planning lies within
traditional homelands and can include traditional migration areas.
The final determination of whether a tribe is affected is made by
the tribe, and should be ascertained during consultation or a
coordination process. When government-to-government consultation
takes place, the consultation process will be guided by the Service
Tribal Consultation Handbook.
The Service has overarching Tribal Trust Doctrine
responsibilities under the Eagle Act, the National Historic
Preservation Act (NHPA), the American Indian Religious Freedom Act
(AIRFA) (42 U.S.C. 1996), Religious Freedom Restoration Act of 1993
(RFRA) (42 U.S.C. 2000bb et seq.), Secretarial Order 3206, American
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, the
Endangered Species Act (June 5, 1997), Executive Order 13007, Indian
Sacred Sites (61 FR 26771, May 29, 1996), and the USFWS Native
American Policy. Government-wide statutes with requirements to
consult with tribes include the Archeological Resources Protection
Act of 1979 (ARPA) (16 U.S.C.
[[Page 12401]]
470aa-mm), the Native American Graves Protection and Repatriation
Act (NAGPRA) (25 U.S.C. 3001 et. seq.), and AIRFA. Regulations with
requirements to consult include NAGPRA, NHPA, and NEPA.
D. Integrating Mitigation Policy Into the NEPA Process
When the Service is the lead or co-lead Federal agency for NEPA
compliance, the mitigation policy may inform several components of
the NEPA process and make it more effective and more efficient in
conserving the affected Federal trust resources. This section
discusses the role of the mitigation policy in Service decision
making under NEPA.
Scoping
The Service should use internal and external scoping to help
identify appropriate evaluation species, obtain information about
the relative scarcity, suitability, and importance of affected
habitats for resource category assignments, identify issues
associated with these species and habitats, and identify issues
associated with other affected resources. Climate change
vulnerability assessments can be a valuable tool for identifying or
screening new evaluation species. The Service should coordinate
external scoping with agencies having special expertise or
jurisdiction by law for the affected resources.
Purpose and Need
The Purpose and Need statement of the NEPA document should
incorporate relevant conservation objectives for evaluation species
and their habitats, and the need to ensure either a net gain or no-
net-loss. Because the statement of Purpose and Need frames the
development of the Proposed Action and Alternatives, including
conservation objectives from the beginning, it steers action
proposals away from impacts that may otherwise necessitate
mitigation. Addressing conservation objectives in the purpose
statement initiates a planning process in which the proposed action
and all reasonable alternatives evaluated necessarily include
appropriate conservation measures, differing in type or degree, and
avoids presenting decision makers with a choice between a
``conservation alternative'' and a ``no conservation alternative.''
Affected Environment
The Affected Environment discussion should focus on significant
environmental issues associated with evaluation species and their
habitats and highlight resource vulnerabilities that may require
mitigation features in the project design. This section should
document the relative scarcity, suitability, and importance of
affected habitats, along with the sensitivity and status of the
species and habitats. It should identify relevant temporal and
spatial scales for each resource and the appropriate indicators of
effects and units of measurement for evaluating mitigation features.
This section should also identify habitats for evaluation species
that are currently degraded but have a moderate to high potential
for restoration or improvement.
Significance Criteria
Explicit significance criteria provide the benchmarks or
standards for evaluating effects under NEPA. Potentially significant
impacts to resources require decision making supported by an
Environmental Impact Statement. Determining significance considers
both the context and intensity of effects. For resources covered by
this mitigation policy, the sensitivity and status of affected
species, and the relative scarcity, suitability, and importance of
affected habitats, provide the context component of significance
criteria. Measures of the severity of effects (degree, duration,
spatial extent, etc.) provide the intensity component of
significance criteria. Significance criteria may help identify
appropriate levels and types of mitigation; however, the Service
should consider mitigation for impacts that do not exceed thresholds
for significance as well as those that do.
Analysis of Environmental Consequences
The analysis of Environmental Consequences should address the
relationship of effects to the maintenance and enhancement of long-
term productivity (40 CFR 1502.16), and include the timing and
duration of direct, indirect, and cumulative effects to resources,
short-term versus long-term effects (adverse and beneficial), and
how the timing and duration of mitigation would influence net
effects over time. The Service's net gain goal for fish and wildlife
resources under this policy applies to the full planning horizon of
a proposed action. Guidance under section V.B.3 (Assessment
Principles) of this policy supplements existing Service, Department,
and government-wide guidance for the Service's environmental
consequences analyses for affected fish and wildlife resources under
NEPA.
Cumulative Effects Analyses
The long-term benefits of mitigation measures, whether on-site
or off-site relative to the proposed action, often depend on their
placement in the landscape relative to other environmental resources
and stressors. Therefore, cumulative effects analyses, including the
effects of climate change, are especially important to consider in
designing mitigation measures for fish and wildlife resources.
Cumulative effects analyses should include consideration of direct
and indirect effects of climate change and should incorporate
mitigation measures to address altered conditions. Cumulative
effects are doubly important in actions affecting species in
decline, such as ESA-listed or candidate species, marine mammals,
and Birds of Conservation Concern, for which the Service should
design mitigation that will improve upon existing conditions and
offset as much as practicable reasonably foreseeable adverse
cumulative effects. Also, to the extent practicable, cumulative
effects analyses should address the synergistic effects of multiple
foreseeable resource stressors. For example, in parts of some
western States, the combination of climate change, invasive grasses,
and nitrogen deposition may substantially increase fire frequency
and intensity, adversely affecting some resources to a greater
degree than the sum of these stressors considered independently.
Analysis of Climate Change
The analyses of climate change effects should address effects to
and changes for the evaluation species, resource categories,
mitigation measures, and the potential for changes in the effects of
mitigation measures. Anticipated changes may result in the need to
choose different or additional evaluation species and habitat, at
different points in time.
Decision Documents
Mitigation measures should be included as commitments within a
Record of Decision (ROD) for an EIS, and within a mitigated FONSI.
The decision documents should clearly identify: Measures to achieve
outcomes of no net loss or net gain; the types of mitigation
measures adopted for each evaluation species or suite of species;
the spatial and temporal application and duration of the measures;
compliance and effectiveness monitoring; criteria for remedial
action; and unmitigable residual effects.
Appendix C. Compenstory Mitigation in Financial Assistance Awards
Approved or Administered by the U.S. Fish and Wildlife Service
The basic authority for Federal financial assistance is in the
Federal Grant and Cooperative Agreement Act of 1977 (31 U.S.C. 6301
et seq.). It distinguishes financial assistance from procurement,
and explains when to use a grant or a cooperative agreement as an
instrument of financial assistance. Regulations at 2 CFR part 200
provide Government-wide rules for managing financial assistance
awards. Each of the Service's 60 financial assistance programs has
at least one statutory authority, which are listed in the Catalog of
Federal Domestic Assistance at www.cfda.gov. These statutory
authorities and their program-specific regulations may supplement or
create exceptions to the Government-wide regulations. The
authorities and regulations for the vast majority of financial
assistance programs do not address mitigation, but there are at
least two exceptions. The statutory authority for the North American
Wetlands Conservation Fund program (16 U.S.C. 4401 et seq.)
prohibits the use of program funds for specific types of mitigation.
Regulations implementing the National Coastal Wetlands Conservation
Grant program (50 CFR part 84) include among the activities
ineligible for funding the acquisition, restoration, enhancement, or
management of lands to mitigate recent or pending habitat losses. To
foster consistent application of financial assistance programs with
respect to mitigation processes, the following provisions describe
appropriate circumstances as well as prohibitions for use of
financial assistance in developing compensatory mitigation.
A. What is federal financial assistance? Federal financial
assistance is the transfer of cash or anything of value from a
Federal agency to a non-Federal entity to carry out a public purpose
authorized by a U.S. law. If
[[Page 12402]]
the Federal Government will be substantially involved in carrying
out the project, the instrument for transfer must be a cooperative
agreement. Otherwise, it must be a grant agreement. We use the term
award interchangeably for a grant or cooperative agreement. This
policy applies only to awards approved or administered by the
Service in one of its 60 financial assistance programs. If the
Service shares responsibility for approving or administering an
award with another entity, the policy applies only to those
decisions that the Service has the authority to make under the terms
of the shared responsibility.
B. Where do most mitigation issues occur in financial
assistance? Mitigation issues mostly occur in the match (cost share)
proposed by applicants. Match is the share of project costs not paid
by Federal funds, unless otherwise authorized by Federal statute.
Most Service-approved or -administered financial-assistance programs
require or encourage applicants to provide match.
C. Can the Federal or matching share in a financially assisted
project be used to generate mitigation credits for activities
authorized by Department of the Army (DA) permits?
1. Neither the Federal nor matching share in financially
assisted aquatic-resource-restoration projects or aquatic-resource-
conservation projects can be used to generate mitigation credits for
DA-authorized activities except as authorized by 33 CFR 332.3(j)(2)
and 40 CFR 230.93(j)(2)). These exceptional situations are any of
the following:
a. The mitigation credits are solely the result of any match
over and above the required minimum. This surplus match must
supplement what will be accomplished by the Federal funds and the
required-minimum match to maximize the overall ecological benefits
of the restoration or conservation project.
b. The Federal funding for the award is specifically authorized
for the purpose of mitigation.
c. The work funded by the financial-assistance award is subject
to a DA permit that requires mitigation as a condition of the
permit. An example is an award that funds a boat ramp that will
adversely affect adjacent wetlands and the impact must be mitigated.
The recipient may pay the cost of the mitigation with either the
Federal funds or the non-Federal match.
2. Match cannot be used to generate mitigation credits under the
exceptional situations described in section C(1)(a-c) if the
financial-assistance program's statutory authority or program-
specific regulations prohibit the use of match or program funds for
compensatory mitigation.
D. Can the Service approve a proposal to use the proceeds from
the purchase of credits in an in-lieu-fee program or a mitigation
bank as match?
1. In-lieu-fee programs and mitigation banks are mechanisms
authorized in 33 CFR part 332 and 40 CFR part 230 to provide
mitigation for activities authorized by a DA permit. The Service
must not approve a proposal to use proceeds from the purchase of
credits in an in-lieu-fee program or mitigation bank as match unless
both of the following apply:
a. The proceeds are over and above the required minimum match.
This surplus match must supplement what will be accomplished by the
Federal funds and the required-minimum match to maximize the overall
ecological benefits of the project.
b. The statutory authority for the financial-assistance program
and program-specific regulations (if any) do not prohibit the use of
match or program funds for mitigation.
2. The reasons that the Service cannot approve a proposal to use
proceeds from the purchase of credits in an in-lieu-fee program or
mitigation bank as match except as described in section D(1)(a-b)
are:
a. Proceeds from the purchase of credits are legally required
compensation for resources or resource functions impacted elsewhere.
The sponsor of the in-lieu-fee program or mitigation bank uses these
proceeds for the restoration, establishment, enhancement, and/or
preservation of the resources impacted. The purchase price of the
credits is based on the full cost of providing the compensatory
mitigation.
b. When credits are purchased from an in-lieu-fee program
sponsor or a mitigation bank to compensate for impacts authorized by
a DA permit, the responsibility for providing the compensatory
mitigation transfers to the sponsor of the in-lieu-fee program or
mitigation bank. The process is not complete until the sponsor
provides the compensatory mitigation according to the terms of the
in-lieu-fee program instrument or mitigation-banking instrument
approved by the District Engineer of the U.S. Army Corps of
Engineers.
E. Can the Federal share or matching share in a financially
assisted project be used to satisfy a mitigation requirement of a
permit or legal authority other than a DA permit?
The limitations on the use of mitigation in a Federal
financially assisted project are generally the same regardless of
the source of the mitigation requirement, but only the limitations
regarding mitigation required by a DA permit are currently
established in regulation. Limitations for a permit or authority
other than a DA permit are established in this Service policy. They
are:
1. Neither the Federal nor matching share in a financially
assisted project can be used to satisfy Federal mitigation
requirements except in any of the following situations:
a. The mitigation credits are solely the result of any match
over and above the required minimum. This surplus match must
supplement what will be accomplished by the Federal funds and the
required minimum match to maximize the overall ecological benefits
of the project.
b. The Federal funding for the award is specifically authorized
for the purpose of mitigation.
c. The work funded by the Federal financial assistance award is
subject to a permit or authority that requires mitigation as a
condition of the permit. An example is an award that funds a boat
ramp that will adversely affect adjacent wetlands and the impact
must be mitigated. The recipient may pay the cost of the mitigation
with either the Federal funds or the non-Federal match.
2. Match cannot be used to satisfy Federal mitigation
requirements under the exceptional situations described in section
E(1)(a-c) if the financial-assistance program's statutory authority
or program-specific regulations prohibit the use of match or program
funds for mitigation.
3. If any regulations govern the specific type of mitigation,
and if these regulations address the role of mitigation in a Federal
financially assisted project, the regulations will prevail in any
conflict between the regulations and this section of Appendix C.
F. Can the Service approve a proposal to use revenue from a
Natural Resource Damage Assessment and Restoration (NRDAR) Fund
settlement as match in a financial assistance award?
1. The Service can approve such a proposal as long as the
financial assistance program does not prohibit the use of match or
program funds for compensatory mitigation. In certain cases, this
revenue qualifies as match because:
a. Federal and non-Federal entities jointly recover the fees,
fines, and/or penalties and deposit the fees, fines, and/or
penalties as joint and indivisible recoveries into a fiduciary fund
for this purpose.
b. The governing body of the NRDAR Fund may include Federal and
non-Federal trustees, who must unanimously approve the transfer to a
non-Federal trustee for use as non-Federal match.
c. The project is consistent with a negotiated settlement
agreement and will carry out the provisions of the Comprehensive
Environmental Response Compensation and Liability Act, as amended,
Federal Water Pollution Control Act of 1972, and the Oil Pollution
Act of 1990 for damage assessment activities.
d. The use of the funds by the non-Federal trustee is subject to
binding controls.
G. Can the Service approve financial assistance to satisfy
mitigation requirements of State, tribal, or local governments?
1. The Service can approve or administer funding for a proposed
financially assisted project that satisfies a compensatory
mitigation requirement of a State, tribal, or local government, or
has match that originated from such a requirement.
2. Satisfying this mitigation requirement with Federal financial
assistance must not be contrary to any law, regulation, or policy of
the State, tribal, or local government as applicable.
H. Can a mitigation proposal be located on land acquired under a
Service financial-assistance award?
1. A mitigation proposal can be located on land acquired under a
Service approved or administered financial-assistance award only if:
a. The land will continue to be used for its authorized purpose
as long as it is needed for that purpose.
b. The mitigation proposal will provide environmental benefits
over and above the terms of the financial-assistance award(s) that
acquired, restored, or enhanced the property.
2. Service staff must be involved in the decision to locate
mitigation on real property acquired under a Service-approved or
administered financial assistance award for one or both of the
following reasons:
[[Page 12403]]
a. The Service has a responsibility to ensure that real property
acquired under one of its financial assistance awards is used for
its authorized purpose as long as it is needed for that purpose.
b. If the proposed legal arrangements or the site-protection
instrument to use the land for mitigation would encumber the title,
the recipient of the award that funded the acquisition of the real
property must obtain the Service's approval. If the proposed legal
arrangements would dispose of any real-property rights, the
recipient must request disposition instructions from the Service.
Request for Information
We intend that a final policy will consider information and
recommendations from all interested parties. We, therefore, invite
comments, information, and recommendations from governmental agencies,
Indian Tribes, the scientific community, industry groups, environmental
interest groups, and any other interested parties. All comments and
materials received by the date listed above in DATES will be considered
prior to the approval of a final policy.
In addition to more general comments and information, we ask that
you comment on the following specific aspects of the policy:
(1) Principles established by the policy in section 4, including
the Service's mitigation planning goal of a net conservation gain, or
at a minimum, no net loss, i.e., maintaining the current status of
affected resources.
(2) Integration of mitigation planning into a broader ecological
context with applicable landscape-level conservation planning, by
steering mitigation efforts in a manner that will best contribute to
achieving conservation objectives.
(3) The integration of all applicable authorities that allow the
Service to recommend or require mitigation within a single mitigation
policy.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
National Environmental Policy Act (NEPA)
We have analyzed the proposed policy in accordance with the
criteria of the National Environmental Policy Act (NEPA) (42 U.S.C.
4332(c)), the Council on Environmental Quality's Regulations for
Implementing the Procedural Provisions of NEPA (40 CFR parts 1500-
1508), and the Department of the Interior's NEPA procedures (516 DM 2
and 8; 43 CFR part 46). We have determined that the proposed policy
includes substantive revisions to the 1981 Mitigation Policy that are
not purely administrative in nature and cannot be categorically
excluded from NEPA documentation requirements consistent with 40 CFR
1508.4 and 43 CFR 46.210(i). In addition, this action may have the
potential to trigger an extraordinary circumstance, as outlined in 43
CFR 46.215. Therefore, we announce our intent to prepare an
environmental assessment (EA) pursuant to the National Environmental
Policy Act (NEPA) of 1969, as amended. We request comments on the scope
of the NEPA review, information regarding important environmental
issues that should be addressed, the alternatives to be analyzed, and
issues that should be addressed at the programmatic stage in order to
inform the site-specific stage. This notice provides an opportunity for
input from other Federal and State agencies, local government, Native
American Tribes, nongovernmental organizations, the public, and other
interested parties.
Authors
The primary authors of the draft policy are the following staff
members of the U.S. Fish and Wildlife Service: Karen Cathey of the
Southwest Regional Office; Deborah Mead and Jason Miller (team leader)
of the Ecological Services Program, Headquarters Office; Doreen
Stadtlander of the Carlsbad Fish and Wildlife Office; Diana Whittington
of the Migratory Birds Program, Headquarters Office; Jerry Ziewitz of
the Southeast Regional Office; and other Headquarters, Regional, and
field contributors. Primary support for policy development was provided
by Cheryl Amrani of the Ecological Services Program, Headquarters
Office.
Authority
The multiple authorities for this action include the: Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.); Fish and
Wildlife Coordination Act, as amended, (16 U.S.C 661-667(e)); National
Environmental Policy Act (42 U.S.C. 4371 et seq.); and others
identified in section 2 and Appendix A of this policy.
James W. Kurth,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-05142 Filed 3-7-16; 8:45 am]
BILLING CODE 4333-55-P