[Federal Register Volume 88, Number 93 (Monday, May 15, 2023)]
[Notices]
[Pages 31000-31001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10341]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[Docket No. FWS-HQ-ES-2021-0014; FF09E30000 FXES11140900000 234]
RIN 1018-ZA07; 1018-ZA08
U.S. Fish and Wildlife Service Mitigation Policy and Endangered
Species Act Compensatory Mitigation Policy
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of final policies.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the
revised Mitigation Policy and the Endangered Species Act (ESA)
Compensatory Mitigation Policy. The revised Mitigation Policy
establishes fundamental mitigation principles and provides a framework
for applying a landscape-scale approach to achieve, through application
of the mitigation hierarchy, no net loss of resources and their values,
services, and functions resulting from proposed actions. The ESA
Compensatory Mitigation Policy adopts the mitigation principles
established in the Mitigation Policy, establishes compensatory
mitigation standards, and provides guidance for the application of
compensatory mitigation through implementation of the ESA.
DATES: The policies are effective May 15, 2023.
ADDRESSES: The revised Mitigation Policy is available at https://www.fws.gov/policy/a1501fw2.pdf. The revised ESA Compensatory
Mitigation Policy is available at https://www.fws.gov/policy/a1501fw3.pdf. In addition, both policies are available at https://www.regulations.gov in Docket No. FWS-HQ-ES-2021-0014.
FOR FURTHER INFORMATION CONTACT: Craig Aubrey, by mail at U.S. Fish and
Wildlife Service, Division of Environmental Review, 5275 Leesburg Pike,
Falls Church, VA 22041-3803; by email at craig_aubrey@fws.gov; or by
telephone at 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
Consistent with the mission of the Service and congressional
direction through the Fish and Wildlife Coordination Act, as amended
(16 U.S.C. 661-667(e)); the Endangered Species Act of 1973, as amended
(ESA; 16 U.S.C. 1531 et seq.); and similar environmental statutes, the
Service has the responsibility to ensure that impacts to fish,
wildlife, plants, and their habitats are considered when actions are
planned, and that those impacts are mitigated so that these resources
may provide a continuing benefit to the American people.
The purpose of the revised Mitigation Policy is to provide guidance
to Service personnel in formulating and delivering recommendations and
requirements to action agencies and project proponents so that they may
avoid, minimize, and compensate for action-caused impacts to species
and their habitats, and uses thereof. The revised Mitigation Policy
establishes fundamental mitigation principles and provides a framework
for applying a landscape-scale approach to achieve, through application
of the mitigation hierarchy, no net loss of resources and their values,
services, and functions resulting from proposed actions. The primary
intent of the revised Mitigation Policy is to apply mitigation in a
strategic manner that ensures an effective linkage with conservation
strategies at appropriate landscape scales.
The purpose of the ESA Compensatory Mitigation Policy is to provide
guidance to Service personnel as they seek to mitigate losses to
endangered and threatened species and their habitats resulting from
proposed actions to further the purposes of the ESA. The ESA
Compensatory Mitigation Policy adopts the mitigation principles
established in the revised Mitigation Policy, establishes compensatory
mitigation standards, and provides guidance for the application of
compensatory mitigation through implementation of the ESA. It covers
all compensatory mitigation mechanisms, including, but not limited to,
proponent-responsible mitigation, conservation banking, and in-lieu fee
programs, and all species and habitats protected under the ESA for
which the Service has jurisdiction.
Prior Policies
The Service's original Mitigation Policy (46 FR 7644, January 23,
1981) has guided our recommendations on mitigating the adverse impacts
of land and water developments on fish, wildlife, plants, and their
habitats since 1981. The revisions reflected in the revised Mitigation
Policy 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
Mitigation Policy integrates all authorities that allow the Service to
recommend or require mitigation of impacts to 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.
The ESA Compensatory Mitigation Policy serves as the Service's
comprehensive treatment of compensatory mitigation under the authority
of the ESA. The ESA Compensatory Mitigation Policy clarifies guidance
in the Service's ``Guidance for the Establishment, Use, and Operation
of Conservation Banks,'' published in the Federal Register on May 8,
2003 (68 FR 24753), and ``Guidance on Recovery Crediting for the
Conservation of Threatened and Endangered Species,'' published in the
Federal Register on July 31, 2008 (73 FR 44761).
We previously published a Mitigation Policy (81 FR 83440, November
21, 2016) and an ESA Compensatory
[[Page 31001]]
Mitigation Policy (81 FR 95316, December 27, 2016). We later requested
public comment on portions of those policies, specifically comments on
the policies' mitigation planning goals (82 FR 51382, November 6,
2017). We subsequently withdrew the Mitigation Policy that was
published in 2016 and reinstated the Mitigation Policy that was
published in 1981 (83 FR 36472, July 30, 2018). We also withdrew the
ESA Compensatory Mitigation Policy that was published in 2016 and
reinstated all policies or guidance documents that were superseded by
that policy (83 FR 36469, July 30, 2018).
In our withdrawal notices in 2018, the Service concluded, in light
of national policy direction reflected in Executive Order (E.O.) 13783,
``Promoting Energy Independence and Economic Growth'' (82 FR 16093,
March 28, 2017); the comments received by the Service; and concerns
regarding the legal and policy implications of compensatory mitigation
with a mitigation planning goal of net conservation gain, that it was
no longer appropriate to retain references to a goal of net
conservation gain within the policies. We further concluded that,
because the goal of net conservation gain was so prevalent throughout
the policies, this concern should be resolved by withdrawing the
policies.
Development of the Revised Policies
E.O. 13990, ``Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis'' (86 FR 7037, January
20, 2021), subsequently rescinded E.O. 13783 and called for an
immediate review of agency actions taken between January 20, 2017, and
January 20, 2021. Consistent with E.O. 13990, the Service evaluated
whether to revise and reissue versions of the mitigation policies. The
Service considered input we received during three separate public
comment periods related to the 2016 mitigation policies. The initial
public comment periods solicited input on the proposed revisions to the
Mitigation Policy (81 FR 12380, March 8, 2016), and on the draft ESA
Compensatory Mitigation Policy (81 FR 61031, September 2, 2016). We
later requested additional public comment on the mitigation planning
goal within both mitigation policies that had already been finalized
(82 FR 51382, November 6, 2017). The documents, comments, and process
related to prior revisions are not summarized here, but may be viewed
within docket number FWS-HQ-ES-2015-0126 (mitigation) and docket number
FWS-HQ-ES-2015-0165 (compensatory mitigation) on https://www.regulations.gov.
One of the main concerns with the 2016 policies was the inclusion
of a mitigation planning goal of net conservation gain. Based on public
comments, changes in Executive Orders, and policy considerations, the
Service has removed reference to a mitigation planning goal of net
conservation gain from both policies. We have also added information
clarifying that the Service's mitigation planning goal is to maintain
the current status of affected resources (i.e., no net loss) and that
the Service's mitigation recommendations and requirements should focus
on important, scarce, or sensitive resources and be consistent with
applicable statutory authorities and the responsibilities of action
proponents.
In the 2018 notice to withdraw the policies, the Service cited
concerns regarding inconsistencies between the policies and concepts in
the opinions of Koontz v. St. Johns River WMD, Nollan v. California
Coastal Commission, and Dolan v. City of Tigard, which identified
appropriate sideboards regarding the links between an action and
compensatory mitigation to offset the effects of that action. Those
opinions call for an ``essential nexus'' between an action's effects
and compensatory mitigation, as well as ensuring that mitigation is
proportional to the action's effect. The Service has incorporated those
concepts in the revised policies. The Service will implement these
mitigation policies in a manner that is consistent with the Koontz case
and any other relevant court decisions. Specifically, we have added
``nexus and proportionality'' as a fundamental mitigation principle for
both policies to reinforce that appropriate mitigation measures must
have a clear connection with the anticipated effects of the action and
be commensurate with the scale and nature of those effects.
In light of the rescission of E.O. 13783, the changes to the
policies described above, and the need for the Service to have modern
mitigation policies, we again finalize the revised Mitigation Policy
and the ESA Compensatory Mitigation Policy.
The Mitigation Policy and ESA Compensatory Mitigation Policy are
non-binding, do not establish legally binding rules, and are internal
Service policies intended only to improve the internal management of
the Service.
National Environmental Policy Act
We have analyzed the final revised policies in accordance with the
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and
the Council on Environmental Quality's regulations for implementing the
procedural provisions of NEPA (40 CFR parts 1500-1508). Issuances of
policies, directives, regulations, and guidelines are actions that may
generally be categorically excluded under NEPA (43 CFR 46.210(i)). The
policies fit within this category and are therefore excluded from
further analysis.
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)); and
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-10341 Filed 5-12-23; 8:45 am]
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