[Federal Register Volume 87, Number 143 (Wednesday, July 27, 2022)]
[Proposed Rules]
[Pages 45076-45078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15708]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 13
[Docket No. FWS-HQ-ES-2021-0137; FF09E22000 FXES11130900000 212]
RIN 1018-BF63
Wildlife and Fisheries; Compensatory Mitigation Mechanisms
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) seeks comments to
assist us in developing a proposed rule establishing objectives,
measurable performance standards, and criteria for use, consistent with
the Endangered Species Act, for species conservation banking. The terms
``you'' or ``your'' in this document refer to those members of the
public from whom we seek response. The terms ``we'' and ``us'' refer to
the Service.
DATES: Submit comments on or before September 26, 2022.
ADDRESSES:
Comment submission: You may submit comments, identified by docket
number FWS-HQ-ES-2021-0137, by any of the following methods:
Electronically: Go to the Federal eRulemaking Portal:
https://www.regulations.gov. In the Search box, enter FWS-HQ-ES-2021-
0137, which is the docket number for this rulemaking. Then, click on
the Search button. On the resulting page, in the panel on the left side
of the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: Docket No. FWS-HQ-ES-2021-0137; U.S. Fish and
Wildlife Service; MS: PRB/3W; 5275 Leesburg Pike, Falls Church, VA
22041-3803.
We will not accept email or faxes. All submissions received must
include the agency name and docket number for this rulemaking. For
detailed instructions on
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submitting comments and other information on the rulemaking process,
see Public Participation in SUPPLEMENTARY INFORMATION.
Document availability: For access to the docket to read background
documents or comments received, go to https://www.regulations.gov and
search for FWS-HQ-ES-2021-0137.
FOR FURTHER INFORMATION CONTACT: Craig Aubrey, Chief, Division of
Environmental Review, U.S. Fish and Wildlife Service, 703-358-2442.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Background
Section 329 of the 2021 National Defense Authorization Act (NDAA
2021) (Pub. L. 116-283, Jan. 3, 2020) requires the Service to issue
regulations of general applicability establishing objectives,
measurable performance standards, and criteria for use for species
conservation banking programs, consistent with the ESA. The NDAA 2021
states that, to the maximum extent practicable, the regulatory
standards and criteria shall maximize available credits and
opportunities for mitigation, provide flexibility for characteristics
of various species, and apply equivalent standards and criteria to all
mitigation banks. The NDAA 2021 also requires us to publish an advance
notice of proposed rulemaking (ANPR) within 1 year of enactment of the
NDAA 2021.
The Service has a long history collaborating with both private and
public entities in the establishment and oversight of mitigation and
conservation banks, and other compensatory mitigation projects. In
2003, we issued the Guidance for the Establishment, Use, and Operation
of Conservation Banks (68 FR 24753, May 8, 2003), which was intended to
help Service personnel evaluate conservation bank proposals. One of the
stated goals of the ESA is to ``provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be
conserved.'' Conservation banks contribute to the recovery of listed
species and help reduce threats such as habitat fragmentation and lack
of habitat connectivity by consolidating and managing priority habitat
areas in a reserve network. So far, 173 Service-approved conservation
banks have protected approximately 260,000 acres of habitat for 57
species listed under the ESA.
As the conservation banking program continues to grow, it is
important to ensure consistency, transparency, and predictability for
project proponents and mitigation providers. The development and
application of equivalent standards and criteria for conservation banks
and all habitat-based compensatory mitigation mechanisms is in the
interest of industry, mitigation providers, and species conservation.
This proposed rule will focus on conservation banking programs for ESA-
listed, proposed, and candidate species, including maximizing available
credits.
Conservation banks typically adhere to basic standards for
providing real estate protection, ecological management, and funding.
The Service intends to apply equivalent standards to all habitat-based
compensatory mitigation mechanisms (including conservation banks, in-
lieu fee programs, and permittee-responsible mitigation) for covered
species.
Species conservation banks sometimes overlap with wetland
mitigation banks established under the joint regulation Compensatory
Mitigation for Losses of Aquatic Resources (33 CFR parts 325 and 332,
and 40 CFR part 230) (73 FR 19594, April 10, 2008; hereafter the ``2008
Rule'') administered by the U.S. Army Corps of Engineers and the U.S.
Environmental Protection Agency, so the Service intends this proposed
rule to maintain compatibility with the 2008 Rule. The 2008 Rule
applies equivalent standards to each covered mitigation mechanism (in-
lieu fee programs, permittee-responsible mitigation, and mitigation
banks) to help ensure compensatory mitigation results in successful,
durable, and sustainable resource functions regardless of mechanism.
The proposed rule will not modify any of the Service's existing
authorities for either recommending or requiring mitigation. Instead,
it will address regulatory standards and criteria for compensatory
mitigation mechanisms, consistent with the ESA and its implementing
regulations.
The Service will analyze the proposed regulation in accordance with
the criteria of the National Environmental Policy Act (NEPA), the
Department of the Interior regulations on Implementation of the
National Environmental Policy Act (43 CFR 46.10-46.450), and the
Department of the Interior Manual (516 DM Chapters 1-15).
Information Requested
The Service requests your comments regarding the content of the
proposed regulation, including appropriate objectives, measurable
performance standards (including metrics for ecological benefit and
additionality) for habitat and species, and criteria for use of credits
offered by bank operators to satisfy a mitigation requirement
consistent with the ESA. We also request your comments regarding how to
ensure the regulatory standards and criteria maximize the accrual of
functions measured as available credits and opportunities for
mitigation to the maximum extent practicable, provide flexibility for
characteristics of various species, and apply equivalent standards and
criteria such as real estate protections, ecological management, and
funding to all species conservation banks. We also request comment on
how best to account for risk and uncertainty when conservation banks
are used to achieve a given conservation objective.
The Service is particularly interested in comments on the
following:
(1) What level of detail should be in the proposed rule to ensure
equivalent standards are consistently applied to all forms of
compensatory mitigation, including equivalence in covering the costs of
mitigation whether they are on public or private lands?
(2) What level of detail should be in the proposed rule regarding
durability and additionality standards to both achieve equivalent
standards across mitigation mechanisms and provide species
conservation?
(3) How should the proposed rule incorporate monitoring, financial
assurances, and publicly accessible mitigation data tracking systems to
ensure a compensatory mitigation mechanism is meeting its performance
standards?
(4) What are the hurdles to species bank establishment that are
within the Service's authority to address through regulation?
(5) How should the proposed rule align with 2008 Rule provisions to
maintain compatibility between mitigation banks and species banks where
appropriate?
(6) How should the Service address potential bank projects on
Federal and Tribal lands or on other lands with unique ownership
considerations and/or some degree of existing protection?
Public Participation
We seek information from knowledgeable members of the public,
including mitigation providers, small
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businesses, Tribes, developers, and others. All submissions received
must include the Service docket number for this document. Before
including your address, phone number, email address, or other personal
identifying information in your comment, you should be aware that your
entire comment--including your personal information--may be made
publicly available. While you can ask us in your comment to withhold
your personal identifying information from public review, we cannot
guarantee that we will be able to do so.
Shannon A. Estenoz,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2022-15708 Filed 7-26-22; 8:45 am]
BILLING CODE 4333-15-P