[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]



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.


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.

    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 
     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 
    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.



    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 
    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 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 
    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 
    (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 
    (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 
    (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 
    (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]