[Federal Register Volume 81, Number 224 (Monday, November 21, 2016)]
[Notices]
[Pages 83440-83492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27751]



[[Page 83439]]

Vol. 81

Monday,

No. 224

November 21, 2016

Part III





Department of the Interior





-----------------------------------------------------------------------





 Fish and Wildlife Service





-----------------------------------------------------------------------





U.S. Fish and Wildlife Service Mitigation Policy; Notice

  Federal Register / Vol. 81 , No. 224 / Monday, November 21, 2016 / 
Notices  

[[Page 83440]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-HQ-ES-2015-0126; FXHC11220900000-156-FF09E33000]


U.S. Fish and Wildlife Service Mitigation Policy

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of final policy.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce 
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.

DATES: This Policy is effective on November 21, 2016.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this Policy, including an 
environmental assessment, are available on the Internet at http://www.regulations.gov at Docket Number FWS-HQ-ES-2015-0126.

FOR FURTHER INFORMATION CONTACT: Craig Aubrey, U.S. Fish and Wildlife 
Service, Division of Environmental Review, 5275 Leesburg Pike, Falls 
Church, VA 22041-3803, telephone 703-358-2442.

SUPPLEMENTARY INFORMATION: The revised Policy integrates all 
authorities that allow the Service either to recommend or to 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. Citations for the many statutes and 
other authorities referenced in this document are in Appendix A.

Background

    The primary intent of revising the 1981 Mitigation Policy (1981 
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) Clarify that this Policy addresses 
all resources for which the Service has authorities to recommend 
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. This Policy 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 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, affected 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 final Policy 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.

Changes From the Draft Policy

    This final Policy differs from the proposed revised Policy in a few 
substantive respects, which we list below, and contains many editorial 
changes in response to comments we received that requested greater 
clarity of expression regarding various aspects of the Policy purpose, 
authorities, scope, general principles, framework for formulating 
mitigation measures, and definitions. The most common editorial change 
to the final Policy addresses the concern that the proposed revised 
Policy was unclear regarding the Service's authorities to either 
recommend or require mitigation. The proposed revised Policy frequently 
used the phrase ``recommend or require'' as a general descriptor for 
Service-formulated mitigation measures, because we have authority to 
require mitigation in some contexts, but not in others. The final 
Policy adds new text to the Authority section that identifies those 
circumstances under which we have specific authority to require, 
consistent with other applicable laws and regulations, one or more 
forms of

[[Page 83441]]

mitigation for impacts to fish and wildlife resources.
    This Policy provides a common framework for the Service to apply 
when identifying mitigation measures across the full range of our 
authorities, including those for which we may require mitigation, but 
the Policy cannot and does not alter or substitute for the regulations 
implementing any of our authorities. We summarize below the few 
substantive changes to the proposed revised Policy, listed by section.
    In section 4 of the Policy, General Policy and Principles, we added 
a principle to emphasize the importance of the avoidance tier of the 
mitigation hierarchy. This new principle reinforces existing direction 
in the proposed revised Policy that Service staff will recommend 
avoidance of all impacts to high-value habitats as the only effective 
means of mitigating impacts at these locations.
    In section 5.5, Habitat Valuation, we clarify that habitats of 
``high-value'' to an evaluation species are scarce and of high 
suitability and high importance. As with the proposed revised Policy, 
the final Policy directs Service personnel to seek avoidance of all 
impacts to high-value habitats.
    In section 5.6.3, Compensation, we added a paragraph that describes 
onsite compensation and distinguishes it from rectifying impacts. We 
added another paragraph that indicates how third parties may assume the 
responsibilities for implementing proponent-responsible compensation. 
Other revisions to this section are editorial in nature, intended to 
better communicate Service intentions about the use of compensation in 
mitigating impacts to species. These revisions include reorganizing 
material into new subsections at 5.6.3.1, Equivalent Standards, and at 
5.6.3.2, Research and Education.
    In section 6, Definitions, we added definitions for ``baseline'' 
and ``habitat credit exchange'' and modified the definition of 
``practicable.''
    In Appendix A, Authorities and Direction for Service Mitigation 
Recommendations, we updated the listed authorities, regulations, and 
guidance documents where necessary. To better reflect their 
relationship with this Policy and to respond to comments received, we 
have modified the discussions of the Bald and Golden Eagle Protection 
Act, Clean Water Act, Fish and Wildlife Conservation Act, Marine Mammal 
Protection Act, Migratory Bird Treaty Act, and Natural Resource Damage 
Assessment and Restoration processes.
    We made clarifying edits and additions to Appendix C, Compensatory 
Mitigation in Financial Assistance Awards Approved or Administered by 
the U.S. Fish and Wildlife Service. We added a sentence in the first 
paragraph recognizing that the regulations at 50 CFR part 84 authorize 
the use of Natural Resource Damage Assessment funds as a match in the 
National Coastal Wetlands Conservation Program. In part B, we added 
``the proposed use of mitigation funds on land acquired with Federal 
financial assistance'' as a common issue related to mitigation in 
financial assistance. In part G, we clarified the circumstances under 
which the Service can approve financial assistance to satisfy 
mitigation requirements of State, tribal, or local governments. In part 
H, we revised the topic question from ``Can a mitigation proposal be 
located on land acquired under a Service financial assistance award?'' 
to ``Can a project on land already designated for the conservation of 
natural resources generate credits for compensatory mitigation?'' and 
revised the answer accordingly. We added a topic to those included in 
the proposed revised Policy at part I: ``Does the Service's Mitigation 
Policy affect financial assistance programs and awards managed by other 
Federal entities?'' This addition describes the various circumstances 
in which this question is relevant.

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 of 
1973, as amended (ESA), 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 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, 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

[[Page 83442]]

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 or to specify mitigation requirements during 
the review of actions based on numerous authorities related to specific 
plant and animal species, habitats, and broader ecological functions. 
Our authorities to engage actions that may affect these resources 
extends to all U.S. States and territories, on public and on private 
property. 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 overarching 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. In most cases, applications of this Policy are 
advisory. Service recommendations provided under the guidance of this 
Policy are intended to help action proponents incorporate appropriate 
means and measures into their actions that will most effectively 
conserve resources affected by those actions. 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 72 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 percent 
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 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 decisionmaking when outcomes are uncertain) 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 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 warrant measures that are 
not habitat based to address certain species-specific impacts.

[[Page 83443]]

Applicability to the Endangered Species Act

    The 1981 Policy did not apply to the conservation of species listed 
as threatened or endangered under the ESA. Excluding listed species 
from the 1981 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, which we define in this Policy 
as measures to avoid, minimize, and compensate for impacts, is an 
essential means of achieving the overarching purpose of the ESA, which 
is to conserve listed species and the ecosystems upon which they 
depend.
    Effective mitigation prevents or reduces further declines in 
populations and/or habitat resources that would otherwise slow or 
impede recovery of listed species. It is fully consistent with the 
purposes of the ESA for the Service to identify measures that mitigate 
the impacts of proposed actions to listed species and designated 
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 or its 
implementing regulations.
    Under ESA section 7, the Service has consistently recognized or 
applied mitigation in the form of:

    (a) Measures that are voluntarily included as part of a proposed 
Federal action that avoid, minimize, rectify, reduce over time, or 
compensate for unavoidable (also known as residual) impacts to a listed 
species;
    (b) components of reasonable and prudent alternatives (RPAs) to 
avoid jeopardizing the continued existence of listed species or 
destroying or adversely modifying designated critical habitat; and
    (c) reasonable and prudent measures (RPMs) within an incidental 
take statement to minimize the impacts of anticipated incidental taking 
on the affected listed species.

As another example, the 1982 amendments to the ESA created incidental 
take permitting provisions (section 10(a)(1)(B)) with specific 
requirements (sections 10(a)(2)(A)(ii) and 10(a)(2)(B)(ii)) for 
applicants to minimize and mitigate impacts to listed species to the 
maximum extent practicable.

Summary of Comments and Responses

    The March 8, 2016, notice announcing our proposed revisions to the 
U.S. Fish and Wildlife Service (Service) Mitigation Policy (Policy) (81 
FR 12380) requested written comments, information, and recommendations 
from governmental agencies, tribes, the scientific community, industry 
groups, environmental interest groups, and any other interested members 
of the public.
    That notice established a 60-day comment period ending May 9, 2016. 
Several commenters requested an extension of time to provide their 
comments, asked the Service to revise and recirculate the Policy for 
comment, or asked the Service to withdraw the Policy to allow 
interested parties additional time to comment. We subsequently 
published a notice on May 12, 2016 (81 FR 29574), reopening the comment 
period for an additional 30 days, through June 13, 2016.
    During the comment period, we received approximately 189 comments 
from Federal, State, and local government entities, industry, trade 
associations, conservation organizations, nongovernmental 
organizations, private citizens, and others. The range of comments 
varied from those that provided general statements of support or 
opposition to the draft Policy, to those that provided extensive 
comments and information supporting or opposing the draft Policy or 
specific aspects thereof. The majority of comments submitted included 
detailed suggestions for revisions addressing major concepts as well as 
editorial suggestions for specific wording or line edits.
    All comments submitted during the comment period have been fully 
considered in preparing the final Policy. All substantive information 
provided has been incorporated, where appropriate, directly into this 
final Policy or is addressed below. The comments we received were 
grouped into general issues specifically relating to the draft Policy, 
and are presented below along with the Service's responses to these 
substantive comments.

A. Clarify How the Policy Guides Formulation of Service Mitigation 
Recommendations vs. Requirements

    Comment (1): Many commenters indicated that the proposed Policy was 
unclear regarding the Service's authorities to require mitigation, and 
requested clarification to distinguish between requirements and 
recommendations. Several of these commenters noted that various 
authorities cited for the Policy, such as the ESA, Fish and Wildlife 
Coordination Act (FWCA), and NEPA, do not require actions to maintain 
or improve the status of affected resources, or to apply a landscape 
approach to their conservation, which are features of the Policy.
    Response: We agree with comments that the proposed Policy provided 
an unclear distinction between circumstances under which the Policy 
would guide the Service's formulation of: (a) Mitigation requirements, 
i.e., measures that the Service may impose upon an action proponent as 
conditions of Service funding, approval, or regulatory decision; vs. 
(b) mitigation recommendations, i.e., measures that we advise an action 
proponent to adopt for conservation purposes. We used the phrase 
``recommend or require'' because the Service has authority to require 
mitigation in some contexts, but not in others, and our aim with this 
Policy is to provide a common framework for the Service to implement 
across the full range of our authorities. However, we recognize the 
need to clearly distinguish these two general contexts, and have 
revised the final Policy accordingly.
    Circumstances under which the Service currently has specific 
authority to require, consistent with applicable laws and regulations, 
one or more forms of mitigation for impacts to fish and wildlife 
resources include the following:
    1. Actions that the Service carries out, i.e., the Service is the 
action proponent;
    2. Actions that the Service funds;
    3. Actions to restore damages to fish and wildlife resources caused 
by oil spills and other hazardous substance releases, under the Oil 
Pollution Act (OPA) and the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA);
    4. Actions of other Federal agencies that require an incidental 
take statement under section 7 of the ESA (measures to minimize the 
impacts of incidental taking on the species);
    5. Actions that require an incidental take permit under section 10 
of the ESA (measures to minimize and mitigate the impacts of the taking 
on the species to the maximum extent practicable);
    6. Fishway prescriptions under section 18 of the Federal Power Act 
(FPA), which minimize, rectify, or reduce over time through management, 
the impacts of non-Federal hydropower facilities on fish passage;
    7. License conditions under section 4(e) of the FPA for non-Federal 
hydropower facilities affecting Service properties (e.g., a National 
Wildlife Refuge) for the protection and

[[Page 83444]]

utilization of the Federal reservation consistent with the purpose for 
which such reservation was created or acquired;
    8. Actions that require a Letter of Authorization or Incidental 
Harassment Authorization under the Marine Mammal Protection Act (MMPA); 
and
    9. Actions that require a permit for non-purposeful (incidental) 
take of eagles under the Bald and Golden Eagle Protection Act (BGEPA).
    The circumstances cited above under which the Service currently has 
specific authority to require, consistent with applicable laws and 
regulations, one or more forms of mitigation for impacts to fish and 
wildlife resources are further clarified in subsequent responses to 
comments, the Policy, and its appendices.
    In all other circumstances not listed above, the Policy will guide 
the Service's formulation of recommendations, not requirements, to 
proponents of actions that cause impacts to fish and wildlife resources 
and which are within the defined scope (section 3) of the Policy.

B. Policy Is Based on Existing Authority

    Comment (2): Several commenters stated that the draft Policy 
attempted to inappropriately create new authority for the Service to 
engage in mitigation processes, circumventing appropriate legislative 
or rulemaking processes. They stated that the Policy could not be used 
to expand Service authority to take actions beyond those authorized by 
Congress, noting that the Policy itself is not an independent grant of 
authority and the imposition of any mitigation measures advocated by it 
would be constrained by authority provided by the applicable statute. 
The commenters requested we clarify that the Policy does not expand 
existing Service authorities.
    Response: The commenters are correct that the Policy cannot create 
or assume new authority for making mitigation recommendations. This 
Policy does not exceed existing statutory or regulatory authority to 
engage in mitigation processes for the purpose of making mitigation 
recommendations, and in limited cases, specifying mitigation 
requirements. Processes established by applicable statutes and 
regulations remain in effect and are not superseded by this Policy. In 
implementing this Policy and carrying out our broader mission, the 
Service recognizes these authorities and processes, and their 
limitations.

C. Scope of the Policy

    Comment (3): One commenter stated their concerns that the scope of 
the Policy appeared to limit the discretion of an action agency, 
potentially holding the action agency or applicant responsible for 
mitigation beyond an action agency's own authority, mission, and 
responsibilities.
    Response: The Service recognizes that the authorities and processes 
of different agencies may limit or provide discretion regarding the 
level of mitigation for a project. This Policy is not controlling upon 
other agencies. There may be limitations (e.g., agency-specific 
authorities and 600 DM 6) on the implementation of measures that would 
achieve the Policy's goal of net conservation gain or a minimum of no 
net loss, when the costs of such mitigation are reimbursable by project 
beneficiaries under laws and regulations controlling agencies' 
activities (e.g., Bureau of Reclamation).
    Comment (4): Two commenters stated their belief that the Policy 
inappropriately expands Service authority to lands beyond National 
Wildlife Refuges or other Service-managed lands, and beyond the 
authorities of the ESA.
    Several commenters wanted the Policy to contain explicit guidance 
on the function of the Service's mitigation authorities under each 
statute and on implementation of the new Policy in relation to those 
authorities. Two commenters were concerned about the way the Service 
will coordinate its responsibilities with similar duties carried out by 
other agencies and how the Policy applies in situations when more than 
one statute applies to a particular action.
    Response: The Service's authorities to recommend mitigation are 
described in section 2 and in Appendix A. The Policy's overall coverage 
is described in the Scope, section 3. The commenters are correct that 
the Policy's coverage is dictated by the underlying statutory 
authorities. If a relevant statute provides the Service with authority 
to make mitigation recommendations, the Service may provide 
recommendations that cover the resources that are described in that 
statute. The Policy cannot create or assume new authority for making 
mitigation recommendations or exceed existing statutory or regulatory 
authority, and it does not extend the geographic or taxonomic extent of 
coverage beyond existing Service practice. Authorities for making 
mitigation recommendations may be applicable, regardless of the 
location of the action, and whether the action has an effect on a 
species listed under the ESA. For example, the Service routinely 
reviews projects to provide mitigation recommendations for inter-
jurisdictional fish under NEPA, FWCA, FPA, and the Clean Water Act 
(CWA) for projects that are planned on lands and waters not owned or 
managed by the Service.
    This Policy covers engagement under all of the Service's mitigation 
authorities, and does not replace interagency procedure established in 
another document. The Policy was developed in accordance with the 
Presidential Memorandum on Mitigating Impacts on Natural Resources from 
Development and Encouraging Related Private Investment (November 3, 
2015), and the Secretary of the Interior's Order 3330 entitled 
``Improving Mitigation Policies and Practices of the Department of the 
Interior'' (October 31, 2013). Having multiple agency mitigation 
policies using common principles, terms, and approaches provides 
greater consistency and predictability for the public.
    Comment (5): Two commenters stated that the Service cannot 
prioritize fish, wildlife, plants, and their habitats above all other 
resources. One said that the Policy must incorporate the Mining and 
Minerals Policy Act of 1970 (30 U.S.C. 21a) that states that it is the 
policy of the Federal Government in the national interest to foster and 
encourage private enterprise in the development of economically sound 
and stable domestic mining, minerals, metal and mineral reclamation 
industries, and to promote the orderly and economic development of 
domestic mineral resources and reserves. They also stated the Policy 
must incorporate the National Materials and Minerals Policy, Research 
and Development Act, (30 U.S.C. 1601 et seq.), which states it is the 
continuing policy of the United States to promote an adequate and 
stable supply of materials necessary to maintain national security, 
economic well-being, and industrial production, with appropriate 
attention to a long-term balance between resource production, energy 
use, a healthy environment, natural resources conservation, and social 
needs. The commenter noted that the Service ignored these statutes and 
proposed requirements that restrict and discourage mineral development 
in violation of these laws. They added that any mitigation must be 
balanced against Congress' policy of encouraging mineral development.
    Response: The Service recognizes the national importance of 
resource development referenced by the commenter, along with many other 
types of economic development and activities. Statutes that encourage 
such development are not modified by this Policy. By enacting the 
various statutes

[[Page 83445]]

that provide for natural resource mitigation authority across multiple 
Federal agencies, Congress has recognized that fish and wildlife 
resources provide commercial, recreational, social, and ecological 
value to the American people. These statutes providing mitigation 
authority do not supersede statutes encouraging economic development. 
Conversely, statutes encouraging economic development do not supersede 
those providing mitigation authorities. Mitigation is a process by 
which agencies, proponents, and partners can facilitate sustainable 
development while simultaneously addressing the long-term conservation 
of native plants, animals, and ecosystems.
    Comment (6): One commenter stated there were constitutional limits 
on requiring mitigation, referencing the Koontz v. St. Johns River 
Water Management District case decided by the U.S. Supreme Court 570 US 
2588 (2013). This commenter noted that any compensatory mitigation 
measures must have an essential nexus with the proposed impacts and be 
roughly proportional, or have a reasonable relationship between the 
permit conditions required and the impacts of the proposed development 
being addressed by those permit conditions.
    Response: Like all agencies, the Service has responsibility to 
implement its authorities consistent with any applicable case law. The 
Service will implement the Policy in a manner that is consistent with 
the Koontz case and any other relevant court decisions. We have 
included the following language in the Policy in section 5.6, Means and 
Measures: 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.

D. Trust Resources

    Comment (7): Several commenters addressed the concept of Federal 
trust fish and wildlife resources. They noted that in section 3.2, the 
Policy states that it applies to Service trust resources, but gives 
Service staff discretion to engage in mitigation processes on an 
expanded basis under appropriate authorities. They were unclear what 
authorities were being referenced and recommended that they be 
clarified, especially if they were expanding the Service's efforts. 
They asked that we clarify what the term ``expanded basis'' means.
    Commenters stated that the Service's authority is limited to 
migratory birds, threatened or endangered species, eagles, and certain 
marine mammals. They said that States have authority for all other 
species. They also requested acknowledgement that States have sole 
authority for resource management and that the Service should restrict 
the Policy to only federally protected species.
    Response: This Policy applies to all resources listed or described 
within the Service's various mitigation authorities. The language used 
within those authorities to describe the covered resources determines 
the scope of Service recommendations made under each authority. Some 
authorities apply to resources defined very broadly. The types of 
resources for which the Service is authorized to recommend mitigation 
include those that contribute broadly to ecological functions that 
sustain species. For example, 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. The purpose of the National Environmental Policy Act (NEPA) 
also establishes an expansive focus in promoting efforts that will 
prevent or eliminate damage to the environment, including fish and 
wildlife resources, 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.
    In this Policy, we note that the Service has traditionally 
described its trust resources as migratory birds, federally listed 
endangered and threatened species, certain marine mammals, and inter-
jurisdictional fish. Our engagement in mitigation processes is likely 
to focus on those trust resources, but under certain authorities, the 
Service's recommendations are not strictly limited to covering only 
trust resources. This Policy does not establish new authority. We 
respect the role of States and State authorities. We have revised 
section 3.2 to replace the term ``expanded basis'' to avoid the 
perception that the Policy is expanding authorities.

E. Applicability to Endangered and Threatened Species

    Comment (8): Several commenters recommended excluding species that 
are listed as endangered or threatened under the ESA as resources to 
which the Policy would apply, and several others supported such 
applicability. Reasons cited by the commenters for excluding listed 
species included: (a) The Service does not explain the circumstances 
that have changed and warrant reversing the listed-species exclusion of 
the 1981 Policy; (b) the Policy cannot substitute for ESA-specific 
requirements; (c) the ESA does not provide authority to require 
mitigation; and (d) Policy concepts such as ``net conservation gain,'' 
``high-value habitat,'' and a ``landscape approach'' to conservation 
are inconsistent with ESA statutory authority and regulatory 
requirements.
    Response: The Policy addresses all fish and wildlife resources for 
which the Service has authority to recommend or require mitigation, 
including ESA-listed species, because of our need to more strategically 
provide such recommendations. The primary purpose of the ESA is to 
provide a means for conserving the ecosystems upon which listed species 
depend. Avoiding, minimizing, and compensating for impacts is as 
important, if not more so, to the conservation of listed species as it 
is to any other resource of conservation concern (e.g., wetlands), 
because listed species are in danger of extinction or are likely to 
become so in the foreseeable future. The Service can and should advise 
others about how they may help conserve listed species when their 
proposed actions would cause impacts to their populations, because 
conserving listed species is part of our agency's mission. Identifying 
those means and measures that would, at minimum, result in no net loss 
to the status of affected listed species will inform action proponents 
about what they can do, consistent with their authorities and 
abilities, to prevent further status declines or contribute to their 
recovery. As mentioned earlier, the 1982 amendments to the ESA are 
another example of the changed circumstances since the 1981 Policy, and 
changes in knowledge, conservation, and management of listed species 
support this Policy's concepts.
    Comment (9): In ESA section 7(a)(2) consultations, several 
commenters noted that reasonable and prudent alternatives (RPAs) to 
actions that jeopardize listed species or destroy or adversely modify 
designated critical habitat are not required to meet the no-net-loss or 
net gain goal of the Policy.

[[Page 83446]]

    Response: When an agency has proposed an action that the Service 
has determined in a biological opinion is likely to jeopardize listed 
species or destroy or adversely modify designated critical habitat, we 
agree that RPA(s) to that action are not required to meet the no-net 
loss/net gain goal of the Policy. The definition of RPAs at 50 CFR 
402.02 applies to the formulation of RPAs, not this Policy. In 
discussions with both the action agency and any applicant involved, the 
Service is required to suggest RPAs, if available, to the action agency 
and to rely on the expertise of both in identifying RPAs.
    The ESA does not prohibit impacts to critical habitat, but section 
7(a)(2) does prohibit Federal actions from destroying or adversely 
modifying critical habitat, without special exemption under section 
7(h). We do not anticipate conflicts between the advisory 
recommendations under this Policy provided in advance of the initiation 
of consultation and subsequent review of actions under section 7(a)(2) 
relative to critical habitat. However, we have added language in the 
Policy that specifically cautions Service personnel about providing 
compensation recommendations in the context of actions that may affect 
designated critical habitat. Recommendations for measures that mitigate 
impacts (all five types) to the listed species within critical habitat 
will receive preference over compensation outside critical habitat to 
avoid the possibility that adverse effects to the physical and 
biological features of critical habitat could appreciably diminish its 
conservation value.
    Comment (10): In ESA section 7(a)(2) consultations, several 
commenters requested that the Service clarify whether the reasonable 
and prudent measures (RPMs) and the accompanying nondiscretionary terms 
and conditions that the Service includes in incidental take statements 
may require compensating for the impacts of take on the species. Most 
stated that RPMs are limited to actions that minimize take, and may not 
include requirements to compensate for taking impacts. In support of 
such comments, some quoted the Services' 1998 Consultation Handbook 
language at page 4-50, which states in a section about RPMs: ``Section 
7 requires minimization of the level of take. It is not appropriate to 
require mitigation for the impacts of incidental take.''
    Response: The Service's authority to require or recommend 
mitigation, including all forms of mitigation covered by the CEQ's 
definition of mitigation, are governed by the ESA and the regulations 
addressing consultations at 50 CFR part 402. While this Policy 
addresses ESA compensatory mitigation to a limited extent, further 
detail regarding the role of compensatory mitigation in implementing 
the ESA will be provided through authority-specific step-down policy 
(see proposed Endangered Species Act--Compensatory Mitigation Policy at 
81 FR 61032-61065, September 2, 2016).
    Comment (11): Two commenters asked that we clarify this sentence in 
the Discussion material on Applicability to the Endangered Species Act: 
``This Policy encourages the Service to utilize a broader definition of 
mitigation where allowed by law.''
    Response: We removed the sentence from the Discussion material in 
this final Policy.

F. Policy Addresses Multiple Authorities

    Comment (12): Several commenters addressed aspects of the Service's 
authority under the Bald and Golden Eagle Protection Act (BGEPA). One 
commenter supported the acknowledgement that compensatory mitigation 
for bald and golden eagles may include preservation of those species' 
habitats and enhancing their prey base. They noted that existing 
regulations establishing a permit program for the non-purposeful take 
of bald and golden eagles recognize these options but that these 
options have not been used. One commenter stated the Service was 
incorrect in stating in the proposed Policy: ``the statute and 
implementing regulations allow the Service to require habitat 
preservation and/or enhancement as compensatory mitigation for eagle 
take.'' They said that Congress has not exercised jurisdiction over the 
habitats of eagles, meaning the Service lacks authority to require 
mitigation for impacts to eagle habitats. One commenter suggested the 
Policy should articulate whether compensatory mitigation would be in 
addition to current requirements of a 1-for-1 take offset.
    Response: The Service has revised the BGEPA material in Appendix A 
section (A)(1) to address the concepts raised by the commenters. 
Although BGEPA does not directly protect eagle habitat beyond nest 
structures, nothing in the statute precludes the use of habitat 
restoration, enhancement, and protection as compensatory mitigation. 
Because golden eagle populations are currently constrained by a high 
level of unauthorized human-caused mortality rather than habitat loss, 
permits for golden eagle take require mitigation to be in the form of a 
reduction to a human-caused source of mortality. However, habitat 
restoration and enhancement could potentially offset permitted take in 
some situations, once standards and metrics are developed to ensure the 
habitat-based mitigation provided will adequately compensate for the 
detrimental impacts of the permit.
    As we developed this Policy, the Service is simultaneously in the 
process of developing revised regulations that will establish the 
specific mitigation ratio (prior to being adjusted to account for 
uncertainties and risks in the mitigation method) for eagle permits.
    Comment (13): Three commenters stated that section 404(m) of the 
CWA does not provide the Service with any substantive authority to 
``secure mitigation'' as stated in Appendix A (A)(2). They suggested 
the Service's role is limited to commenting upon section 404 permits 
and providing recommendations to the U.S. Army Corps of Engineers 
(Corps) and that final decisionmaking rests with that agency.
    Response: We have edited Appendix A to remove the word ``secure,'' 
replacing it with ``recommend.'' This change better reflects the 
Service's authority, provided in the CWA, to provide mitigation 
recommendations during permitting processes. The Service makes such 
recommendations with the intention that they be considered and adopted 
by the Corps as their permit conditions or requirements, but the 
commenters are correct that the Service's recommendations themselves 
are advisory.
    Comment (14): Two commenters were concerned that the language in 
the Policy provides an inappropriate method of requiring mitigation 
measures on projects permitted under CWA section 404 where the Service 
could not do so under its own authority, by asking the Corps to impose 
them.
    Response: The language regarding the CWA in Appendix A (A)(2) does 
not introduce any new authority or process. It describes the existing 
means by which the Service, under statutory authority in the CWA, 
provides recommendations to the Corps. The Service uses those 
recommendations to advise the Corps on the effects of proposed 
permitting actions on aquatic habitats and wildlife and how to mitigate 
those effects. The Corps then decides whether to adopt the Service's 
advice in making their CWA permitting decision.
    Comment (15): One commenter was concerned that the Policy could be 
applied to activities authorized under CWA section 404 Nationwide 
Permits (NWP) that have only minimal environmental impacts. They said 
that the Service should expressly exclude

[[Page 83447]]

activities authorized by NWPs from the Policy because such activities 
have only minimal environmental impacts and any current mitigation 
requirements are unwarranted.
    Response: Mitigation does apply to the NWP program. The Corps 
addresses mitigation for NWP-authorized activities in General Condition 
23 (77 FR 10285, February 21, 2012). Activities authorized by NWPs are 
not excluded from this Policy. Also see the agency coordination 
provisions of General Condition 31, Pre-construction Notification, in 
the NWPs issued by the Corps on February 21, 2012 (77 FR 10286). For 
the listed NWPs and in the circumstances described in General Condition 
31, the Service is afforded a review opportunity, after which the U.S. 
Army Corps District Engineer will consider any comments from Federal 
and State agencies concerning the proposed activity's compliance with 
the terms and conditions of the NWPs and the need for mitigation to 
reduce the project's adverse environmental effects to a minimal level.
    Comment (16): One commenter suggested clarifying the application of 
the Policy to the Service's role in CWA section 404 permits and 
mitigation by adding the following sentence to Section 3.4, 
Applicability to Service Actions: This Policy applies to the Service's 
review of all CWA permits, both in coordination and consultation roles.
    Response: We agree with the commenter that the Policy applies to 
the Service's review of CWA section 404 permits. We did not add the 
suggested sentence but address the Service's application of our 
statutory authority to make recommendations that mitigate the impacts 
of these permitted actions on aquatic environments in Appendix A 
(A)(2).
    Comment (17): Two commenters addressed the Service's authority 
under the Fish and Wildlife Coordination Act. One commenter said the 
Policy should acknowledge that the FWCA is advisory in nature. Another 
commenter said that the Policy should acknowledge that the FWCA 
provides a basis for recommending mitigation of impacts to ecological 
functions.
    Response: Mitigation recommendations the Service makes under the 
FWCA to Federal agencies planning water resource development projects 
are advisory. Section 2(a) of the FWCA requires agencies to consult 
with the Service whenever the waters of any stream or other body of 
water are proposed or authorized to be impounded, diverted, 
channelized, controlled, or modified for any purpose whatever, with a 
view to the conservation and development of fish and wildlife 
resources. Section 2(b) of the FWCA requires that Service reports and 
recommendations be given full consideration and included in project 
reports to Congress or to any other relevant agency or person for 
authorization or approval. These aspects of FWCA compliance are 
required. Adoption of Service recommendations by the Federal water 
resource construction agency is not required.
    The FWCA applies to those resources described in section 8 of the 
statute, where the terms ``wildlife'' and ``wildlife resources'' are 
defined to include birds, fishes, mammals, and all other classes of 
wild animals, and all types of aquatic and land vegetation upon which 
wildlife is dependent. In practice, Service recommendations made under 
FWCA are likely to focus on linkages of effects to trust resources, as 
prioritized by Service field and regional offices, but recommendations 
can cover resources as the statute defines. Because of the breadth of 
this coverage, we agree with the commenter that Service recommendations 
under the FWCA can include measures intended to address systemic 
ecological functions and agree that the purposes of the statute 
envision this application.
    Comment (18): Several commenters addressed the Service's authority 
under the Migratory Bird Treaty Act (MBTA). One commenter said the 
Service was incorrect in describing implied authority to permit 
incidental take of migratory birds under the MBTA and noted that the 
Service has no authority to require compensatory mitigation for 
incidental take of migratory birds. Several commenters said that 
mitigation for migratory birds exceeds MBTA authority and that the 
Policy should exclude potential incidental impacts to migratory birds 
under the MBTA until the Service establishes statutory or regulatory 
authority to require landowners to obtain incidental take authorization 
prior to undertaking otherwise lawful activities. They added that the 
MBTA does not directly address mitigation or habitat impacts.
    One commenter said the Service was incorrect in writing that the 
Fish and Wildlife Conservation Act implicitly provided for mitigation 
of impacts to migratory birds. They said that the language does not 
authorize the Service to engage in any management activities associated 
with migratory birds, particularly over private parties, only directing 
the Service to monitor and assess population trends and species status 
of migratory nongame birds.
    Response: The Service has consistently interpreted the MBTA to 
apply to the incidental take of migratory birds. Currently, there is no 
express authority to permit the incidental take of migratory birds 
under the MBTA. Thus, the Service uses an enforcement discretion 
approach whereby the Service provides technical assistance to project 
proponents with strategies to avoid or minimize project-related take of 
migratory birds that is not the purpose of the otherwise legal action. 
Under this approach, the Service recommends voluntary measures that can 
mitigate the direct take of migratory birds and works with project 
proponents to address impacts to migratory bird habitat, including 
voluntary compensation for loss of migratory bird habitat. In May 2015, 
the Service published a notice of intent to conduct a National 
Environmental Policy Act review of a proposed rule that would establish 
the authority to permit incidental take as provided by the Act itself. 
An environmental impact statement will evaluate multiple alternatives 
for authorizing the incidental take of migratory birds. Subsequently, 
the Service will develop a regulation that provides the clear authority 
to permit incidental take and require mitigation measures to avoid and 
minimize incidental take, and compensation for unavoidable take. Until 
the regulation is finalized, the Service will continue working with 
project proponents and industries to manage impacts to migratory birds 
and their habitats.
    The Service does not have specific statutory authority pursuant to 
the MBTA to require Federal action agencies and/or their permittees to 
provide compensatory mitigation for unavoidable impacts to (loss of) 
migratory bird habitat resulting from federally conducted or approved, 
authorized, or funded projects or activities. However, many Federal 
agency-specific authorities, as well as procedural authorities such as 
NEPA and the FWCA, require consultation with the Service, State natural 
resource agencies, and others, and evaluation of environmental effects 
of proposed actions, which may include considering impacts to migratory 
bird habitat. Through these authorities, the Service may recommend 
compensatory mitigation for unavoidable impacts to migratory bird 
habitat. Federal action agencies may include terms and conditions in 
permits, licenses, and certificates that mitigate a full range of 
adverse environmental effects, such as recommendations to compensate 
for

[[Page 83448]]

unavoidable impacts to migratory bird habitat, if they determine they 
have authority, consistent with their statutes and regulations, to 
require such compensatory mitigation.
    In addition, Executive Order (E.O.) 13186 directs Federal agencies 
``taking actions that have, or are likely to have, a measurable 
negative effect on migratory bird populations'' to sign a Memorandum of 
Understanding (MOU) with the Service ``that shall promote the 
conservation of migratory bird populations.''
    In Appendix A, we have modified the text of section (A)(7) to 
clarify the requirements of the Fish and Wildlife Conservation Act and 
have made minor clarifying edits to the MBTA text of section (A)(10).
    Comment (19): Four commenters addressed the Marine Mammal 
Protection Act (MMPA) discussion in Appendix A (A)(9). One commenter 
suggested that the Service provide more clarification on existing 
authorities under the MMPA. These included specifying that this section 
of Appendix A only discusses incidental take authorizations for non-
commercial fishing activities; clarifying requirements as they apply to 
military readiness activities; providing additional information on 
other means of affecting the least practicable adverse impact; and 
clarifying that the permissible methods of taking and the mitigation 
and reporting are required measures as provided under Incidental Take 
Regulations (ITRs) and Incidental Harassment Authorizations (IHAs).
    Response: Although the MMPA section of Appendix A was intended to 
provide a general overview for part of this Act, we agree that Appendix 
A of the Mitigation Policy could benefit from these additional 
clarifications. We have revised Appendix A to address these points as 
appropriate.
    Comment (20): Commenters stated that the Policy is incompatible 
with the MMPA in that it adopts a new position inconsistent with the 
existing regulations or otherwise effects a substantive change in the 
MMPA.
    Response: This Policy does not alter or amend any existing 
regulation, law, or policy other than the 1981 Policy itself. Instead, 
where mitigation measures are compatible with the standards of other 
statutes, e.g., the MMPA, the Service would recommend their use. On the 
other hand, there are mitigation measures that may be required under 
statutes besides the MMPA regardless of this Mitigation Policy, e.g., 
mitigation measures to ensure the least practicable adverse impact on a 
marine mammal species or stock and its habitat, and on their 
availability for subsistence use.
    Comment (21): Commenters stated that the draft mitigation Policy is 
incompatible with the MMPA in that it indicates that recipients of 
incidental take authorizations would be required to take actions to 
achieve a net conservation gain or no net loss to the affected marine 
mammal species or stock. They commented that the Service does not have 
such authority under the MMPA.
    Response: The MMPA states that species and population stocks should 
not be permitted to diminish beyond the point at which they cease to be 
a significant functioning element in the ecosystem of which they are a 
part, and, consistent with this major objective, they should not be 
permitted to diminish below their optimum sustainable population. In 
this manner, the mitigation Policy is compatible with the MMPA in that 
it implies there should be no conservation loss. However, the Service 
agrees that the MMPA does not require recipients to achieve a net 
conservation gain or no net loss to marine mammals. It was not the 
intent of this Policy to make such a requirement. Instead, should the 
Service make the required findings under section 101(a)(5) of the MMPA 
and authorize incidental take, it would prescribe the permissible 
methods of taking and other means of ensuring the least practicable 
adverse impact on the marine mammal species or stock and its habitat, 
and on the availability for subsistence use as a part of that 
authorization. We have revised Appendix A of the Policy to clarify this 
point.
    Comment (22): One commenter suggested that the Policy should 
include language to ensure that review and consultation under Section 
106 of the National Historic Preservation Act of 1996 (NHPA) (16 U.S.C 
470 et seq.), as amended in 1992, takes place at the early planning 
stage of the action and not wait until mitigation is being considered.
    Response: We have revised section 3.4 of the Policy to state that 
the Service's responsibilities begin ``during early planning for design 
of the action.'' In addition, we have added the following language: 
``Consistent with the NEPA, and the NEPA and NHPA Section 106 Handbook, 
these reviews will be integrated into the decisionmaking process at the 
earliest possible point in planning for the action rather than wait 
until mitigation is considered.''
    Comment (23): One commenter said that in Appendix B, to help meet 
its overarching Tribal Trust Doctrine responsibilities under the NHPA, 
the Service should initiate Section 106 consultation with Indian tribes 
early within the time of mitigation planning for the FWS proposed 
action (instead of after the preferred mitigation approach is 
selected).
    Response: We have revised Appendix B accordingly. The Service will 
initiate Section 106 consultation with Indian tribes during early 
planning for Service-proposed actions, to ensure their rights and 
concerns are incorporated into project design. Consultation will 
continue throughout all stages of the process, including during 
consideration of mitigation, and will follow the Service's Tribal 
Consultation Handbook and the Service's Native American Policy.
    Comment (24): One commenter specifically questioned the treatment 
of Natural Resource Damage Assessment actions conducted under CERCLA, 
OPA, and the CWA, stating that the Presidential Memorandum on 
Mitigating Impacts on Natural Resources from Development and 
Encouraging Related Private Investment, dated November 3, 2015, 
requires that separate guidance be developed for when restoration 
banking or advance restoration would be appropriate.
    Response: When a release of hazardous materials or an oil spill 
injures natural resources under the jurisdiction of State, tribal, or 
Federal agencies, the type of restoration conducted depends on the 
resources injured by the release and, by nature of the action, must 
happen after impacts occur. Thus, this Policy's preference for 
compensatory mitigation measures that are implemented and earn credits 
in advance of project impacts cannot apply. However, pending 
promulgation of further DOI guidance, the tools provided in section 5 
maintain flexibility useful in implementing restoration to restore 
injured resources under the jurisdiction of multiple governments, by 
providing support for weighing or modifying project elements to reach 
Service goals. Therefore, in agreement with the commenter, we have made 
edits to section 5.6 and to Appendix A to clarify the relationship of 
this Policy with Natural Resource Damage Assessment and the 
Presidential Memorandum on Mitigation.
    Comment (25): Two commenters said that combining the fish and 
wildlife resources provisions of the Stream Protection Rule under the 
Surface Mining Control and Reclamation Act (SMCRA) with the language of 
the proposed Mitigation Policy could result in the Service inserting 
mitigation

[[Page 83449]]

requirements not otherwise called for in a SMCRA permit.
    Response: At the time this Policy was completed, the proposed 
Stream Protection Rule, published July 27, 2015 (80 FR 44436), was not 
yet finalized. The statutory language of SMCRA and its implementing 
regulations, including the Stream Protection Rule when finalized, will 
determine the scope of resources covered by Service recommendations 
under that statute. This Policy does not exceed existing statutory or 
regulatory authority to engage in mitigation processes for the purpose 
of making mitigation recommendations, and in limited cases, specifying 
mitigation requirements. Processes established by applicable statutes 
and regulations are not superseded by this Policy.

G. Exemptions

    Comment (26): Several commenters provided observations regarding 
exemptions from the Policy. One commenter said that the Policy should 
further identify those activities and projects that are exempt, adding 
that the Policy should make clear that any new procedural or other 
requirements apply only to new project applications or proposals. 
Several commenters said that the Policy should not apply to actions for 
which a complete application is already submitted. They stated that the 
Policy should apply neither to actions already under review nor to 
actions where coordination was initiated prior to publication of the 
final Policy.
    Response: In section 3.3, Exclusions, we describe the circumstances 
when the Policy does not apply, but we do not specifically exempt any 
category of action. The Policy applies when one or more of our 
authorities apply to the review of a particular action for purposes of 
making mitigation recommendations. It is the language of those 
authorities that specifies their coverage of particular actions and 
resources. In section 3.3, we establish that the Policy does not apply 
when the Service has already agreed to a mitigation plan for pending 
actions, except in the specified circumstances. Complete applications 
that are submitted prior to the finalization of this Policy, but that 
are not yet under review, do not satisfy those circumstances. If an 
action is under active review as of the date of final publication of 
this Policy, Service personnel may elect to apply this Policy to that 
action. For actions where coordination was initiated prior to the final 
Policy, Service personnel would determine whether that coordination 
constitutes active review.
    Comment (27): Two commenters said the Policy should exempt 
landowners who have participated or are currently participating in 
voluntary programs designed to conserve endangered species.
    Response: We do not specifically exempt any category of action in 
section 3.3. This Policy, as an umbrella policy, integrates all of the 
Service's authorities for engaging in mitigation. We cannot legally 
exempt the landowners referenced by the commenters on the basis of 
their status pursuant to an agreement entered into under a single 
authority, because their future actions may trigger applicability of 
one or more other authorities. The Policy does not, however, override 
or modify any such agreements or substitute for the regulations 
governing those agreements.
    Comment (28): Four commenters stated that the Policy should 
explicitly exempt activities with de minimus impacts. They said that 
projects with small and/or temporary impacts should not be burdened by 
mitigation measures.
    Response: We do not specifically exempt any category of action and 
do not exempt actions on the basis of the size of activities planned or 
on the size of their impacts. The Policy provides a framework to guide 
Service personnel in their review of actions, including their 
application of the mitigation hierarchy and their recommendations for 
mitigation. Application of this guidance will assist Service personnel 
in determining whether to engage actions in mitigation planning and 
then in the formulation of mitigation recommendations. Application of 
this guidance could result, in appropriate circumstances, in a decision 
not to engage in mitigation planning for actions with de minimus 
impacts, but we do not specifically exempt actions based on the scale 
of anticipated impacts.
    Comment (29): One commenter stated the Policy should include an 
exemption for conservation projects sponsored by local, State, or 
Federal resource agencies that seek beneficial restoration and 
implement conservation objectives.
    Response: We do not specifically exempt any category of action and 
do not exempt actions on the basis of their primary purpose. We 
acknowledge that actions designed to restore or create habitats are 
generally less likely to require, for example, compensatory mitigation, 
and support their role in fulfilling the Service's larger mission. The 
Policy does not establish new or increased scrutiny of conservation or 
restoration actions than under existing statutes and regulations. The 
Service may apply this Policy in review of a conservation action that 
is intended to benefit one resource, but may adversely affect others 
for which the Service is authorized to provide mitigation 
recommendations and/or mitigation requirements.
    Comment (30): Two commenters stated that this Policy should not 
apply to military testing, training, or readiness activities. They 
stated that such an exclusion is necessary to be consistent with the 
Presidential Memorandum on Mitigating Impacts on Natural Resources from 
Development and Encouraging Related Private Investment (November 3, 
2015).
    Response: The Service interprets the Presidential Memorandum, which 
instructs agencies to develop or update their mitigation policies, to 
exempt agencies that conduct military testing, training, and readiness 
activities from the requirement to update or create policies for those 
activities. The Presidential Memorandum cannot exempt any particular 
activity from the applicability of existing statutory authority that 
provides for mitigation.
    Comment (31): One commenter stated the Policy should define or 
describe ``habitat'' and recommended that the Service exclude dredge 
material placement sites, and other such manmade areas, from mitigation 
planning processes.
    Response: Habitat develops on sites with a history of human 
manipulation, including levees, reclaimed mine sites, timber harvest 
sites, agricultural areas, and dredged material placement sites. The 
commenter does not reference a particular timeframe over which their 
proposed exemption would be valid. We note that sites with a history of 
human manipulation may have been disturbed or modified hundreds of 
years prior, with multiple episodes of habitat recovery and re-
disturbance in the intervening years. The Policy does not exclude areas 
solely because they are manmade or disturbed habitats. Mitigation 
requirements and recommendations will be informed by the framework 
established in this Policy, including section 5.5, Valuation.

H. Net Conservation Gain/No Net Loss

    Comment (32): Many commenters addressed the Policy's mitigation 
planning goal to improve (i.e., a net gain) or, at minimum, to maintain 
(i.e., no net loss) the current status of affected resources. A number 
of commenters supported the goal while a number of commenters opposed 
the inclusion of a net conservation gain. Many commenters stated that 
the Service lacks the statutory authority to implement the

[[Page 83450]]

net gain goal for mitigation planning. Several commenters suggested 
that a net gain goal imposes a new standard for mitigation and that 
mitigation requirements should be commensurate with the level of 
impacts. Others expressed concern about the costs associated with 
achieving a net gain.
    Response: The Policy applies to those resources identified in 
statutes and regulations that provide the Service with the authority to 
make mitigation recommendations or specify mitigation requirements and 
are described in section 2 and in Appendix A. The purpose of the net 
conservation goal in mitigation planning is to improve conservation 
outcomes to affected resources, but the Policy does not require project 
proponents to achieve those outcomes. The Policy provides a framework 
for Service recommendations to conserve fish, wildlife, plants, and 
their habitats that are negatively affected by proposed actions. The 
identification of those means and measures that would result in a net 
conservation gain to the affected resources will not only help prevent 
further declines but contribute to a net improvement in the status of 
affected species and their habitats. The Service will seek a net gain 
in conservation outcomes in developing mitigation measures consistent 
with our mission to identify and promote opportunities to decrease the 
gap between the current and desired status of a resource.
    Comment (33): Several commenters questioned the ability to achieve 
the net conservation gain and how it would be measured. Other 
commenters stated that the Policy should provide the methodology to 
assess or measure the net conservation gain.
    Response: It is beyond the scope of the Policy to provide specific 
quantifiable measures to achieve the net conservation gain goal. The 
Service's mitigation goal is to achieve a net conservation gain or, at 
a minimum, no net loss of the affected resources. The Policy provides 
the framework for assessing the effects of an action and formulating 
mitigation measures (sections 5.1 through 5.9) to achieve this goal, 
which will be specific to the conservation objectives of the affected 
resources.
    Comment (34): Several commenters stated that neither no net loss, 
nor net conservation gain, are compatible with the standards of the ESA 
sections 7 and 10. One commenter asked that we clarify that the net 
conservation gain goal does not modify or expand proponents' 
obligations under ESA sections 7 or 10 permitting programs. One 
commenter stated that the Policy's goal would have limited relevance to 
section 10 decisions other than serving as an aspiration or goal for 
negotiating conservation measures. One commenter asked that we specify 
how the Policy's goal will be applied to processing incidental take 
permit applications under section 10(a)(2)(B)(ii), especially for 
projects predicted to directly kill listed species. This commenter 
added that neither no net loss nor net gain is an appropriate goal 
under section 10 if the goal implies that impacts at the individual 
level will not be minimized to the maximum extent practicable.
    Response: This Policy is intended to guide mitigation for impacts 
to listed species. It does not expand the Service's authorities for 
recommending or requiring mitigation under the ESA. As an administrator 
of the ESA, the Service has an obligation to work with others to 
recover listed species and preclude the need to list species, including 
guiding compensatory mitigation to offset the adverse impacts of 
actions to threatened and endangered species. The Service anticipates 
further defining the mitigation goal in relation to compensatory 
mitigation for impacts to listed species and designated critical 
habitat in the forthcoming Endangered Species Act Compensatory 
Mitigation Policy.
    Comment (35): One commenter recommended the use of regional 
conservation goals and objectives in developing landscape-scale 
mitigation where the conservation goals and objectives are clear, 
explicit, and defensible. The commenter recommended that the Policy 
define a conservation goal as a ``formal statement describing the 
future status of a species or habitat.''
    Response: We acknowledge that there may be variability in 
conservation plans developed by different entities, and agree that the 
commenter's descriptions are among the possibilities. This Policy 
describes an overall goal of 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. This Policy defines 
conservation objectives as 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.

I. Landscape-Scale Approach

    Comment (36): Two commenters stated the Policy should include 
nearshore, estuarine, and marine habitats in describing landscapes. 
They asked that we clarify that the concept is inclusive of 
ecologically connected areas of the aquatic environment, such as 
watersheds.
    Response: We concur with the commenters that the definition of and 
concept of landscape and a landscape approach must include aquatic 
environments. The concept does include ecologically connected areas of 
the aquatic environment such as watersheds. The existing definition of 
landscape in section 6 accommodates this inclusion.
    Comment (37): Three commenters suggested providing more clarity 
regarding what it means to take a landscape approach to mitigation in 
the absence of an existing conservation plan. They said that a 
landscape approach in the absence of an appropriate plan will 
necessitate an analytical process and the Policy should identify the 
information that should be used in such a process. They suggested 
adopting language from the rule on Compensatory Mitigation for Losses 
of Aquatic Resources, 33 CFR parts 325 and 332 (Corps) and 40 CFR part 
230 (Environmental Protection Agency (EPA)), 33 U.S.C. 1344, that 
describes the Corps and EPA watershed approach in the absence of 
appropriate plans.
    Response: The availability of plans will be variable, and the 
Policy's instruction to Service staff to take a landscape approach when 
conservation plans are not available is sound. The diversity in the 
habitats, species, project impacts, and mitigation in the 
implementation of the Service's suite of mitigation authorities make 
detailed specification of landscape approach instructions beyond the 
scope of this umbrella policy. In concurrence with the commenters, we 
have added text to the end of section 5.1, Integrating Mitigation with 
Conservation Planning.
    Comment (38): Multiple commenters expressed concerns regarding how 
the landscape approach will be

[[Page 83451]]

implemented, suggesting that clarity be provided through specific 
criteria, guidance on process, and how data will be used or 
appropriateness of data, for consistent application.
    Response: The Service has written the national Policy in a manner 
that facilitates further clarification on a regional scale. As with 
many of the decisions made in impact analysis, determination of 
appropriate assessment methodologies including landscape scale must 
occur on a project-by-project basis, under the authority at hand, with 
information most appropriate for the site or region of impact. Section 
5.3.3 allows the Service flexibility in methodology to meet this need 
by allowing use of any methodology that allows comparison of present to 
predicted conditions, measures beneficial and adverse impacts by a 
common metric, and predicts effects over time. We look forward to using 
existing means of engagement at the local and State level, when working 
with the States, tribes, and other partners through existing 
authorities while developing programs and additional guidance to seek 
mutual goals and avoid inconsistency.

J. Advance Mitigation Planning at Larger Scales

    Comment (39): Two commenters stated that the term ``Advance 
Mitigation Planning at Larger Scales'' in section 5.1, Integrating 
Mitigation with Conservation Planning, might be confused with the 
Policy's preference for Advance Mitigation in section 5.7.1, 
Preferences.
    Response: We agree and have changed the term within section 5.1 to 
read ``Proactive Mitigation Planning at Larger Scales.''

K. Climate Change

    Comment (40): Many commenters addressed the Policy's inclusion of 
climate change in assessing the effects of a proposed action and 
mitigation. One commenter stated the Policy should make it a 
requirement that climate change be assessed, while others urged the 
Service to refrain from using climate change projections to govern 
mitigation efforts. Several commenters stated that climate change 
predictions and the effects to species and their habitats are uncertain 
and that the current state of climate projections are not of a scale 
sufficient to assess project-related impacts or mitigation. Several 
commenters suggested the Policy include guidance on how the effects of 
climate change should be determined. One commenter stated the Service 
should ensure that the temporal scope of the analyses is well defined 
and supported by data and that the impacts to species and their 
habitats can be assessed with reliable predictability.
    Response: Consistent with the Departmental Manual Chapter (600 DM 
6), this Policy recommends that climate change be considered when 
evaluating the effects of an action and developing appropriate 
mitigation measures. The Service recognizes that the science of climate 
change is advancing and assessment methodologies are continually being 
refined to address the effects of climate change to specific resources 
and at differing scales. Because of the broad scope of resources 
covered by this Policy and the evolving state of climate change science 
and assessment methodologies, including specific information on these 
topics is beyond the scope of the Policy. Therefore, the Policy is 
written with language to ensure that it does not become quickly 
outdated as methodologies evolve. As stated in section 5.3, Assessment, 
the Service will use the best available information and methodologies 
when considering the effects of climate change to the resources covered 
by this Policy and in designing mitigation measures.
    Comment (41): One commenter provided an in-depth discussion of the 
broad-scale consequences of greenhouse gas emissions, climate change, 
and carbon sequestration.
    Response: The Service shares the commenter's emphasis of the 
importance of climate change as a systemic challenge that must be a 
focus of integrated natural resource management. That is why it is 
written in the Policy to inform the scale, nature, and location of 
mitigation measures when employing the Policy's fundamental principle 
of using the landscape approach (section 4.c). It is not possible to 
provide exhaustive details for addressing climate change in this 
umbrella policy. Our mitigation authorities give us ability to 
recommend mitigation for impacts to species and habitats, but we do not 
have explicit authorities to recommend offsets for carbon emissions. In 
the course of integrating mitigation with conservation planning 
(section 5.1), assessing project impacts and formulating mitigation 
measures (section 5.3), and recommending siting of compensatory 
mitigation (section 5.7.1), this Policy directs Service staff to 
integrate consideration of climate change.

L. Collaboration and Coordination

    Comment (42): Several commenters supported the Policy's clear 
desire for collaboration and coordination with stakeholders. However, 
other commenters were concerned with the lack of detail in regard to 
coordination with State, tribal, or other local conservation partners 
during various steps in the process, and the extent to which data, 
analyses, and expertise of these entities will be used, and conflict 
with existing planning efforts avoided. Multiple comments indicated the 
importance of early coordination with State, tribal, and Federal 
organizations, local conservation partners, and private landowners, 
especially to avoid delay in the process. Some commenters requested 
minimum standards for plans or data, and indicated multiple types of 
plans or data that would be useful (e.g., ESA Recovery Plans, State 
Wildlife Action Plans, watershed plans, State natural heritage data, 
and plans associated with State or metropolitan transportation planning 
processes). One commenter in particular pointed to the importance of 
collaborating to avoid conflicts and ``negative externalities'' for 
Alaska and its citizens. Multiple commenters requested we specifically 
list State and local entities in section 5.2.
    Response: State and local conservation partners often have data or 
planning documents important to project mitigation scenarios. Thus, we 
acknowledge the benefits of collaboration and coordination in the early 
planning and design of mitigation in section 5.2. We look forward to 
using existing means of engagement at the local and State level, when 
working with the States, tribes, and other partners through existing 
authorities while developing programs to seek mutual goals and avoid 
inconsistency. Therefore, we revised the text in sections 4(c) and 
5.2(a) and (d) to better reference local government entities.
    Comment (43): One commenter requested reaffirmation that States 
can, with guidance and participation of the Service, develop and 
implement mitigation programs to achieve Service mitigation goals, 
while aligning with local conservation plans and multiple use 
objectives. Several commenters requested identification of specific 
Service representatives to engage in these planning efforts, and 
clarification on process, especially to avoid disputes related to 
inconsistency. One commenter requested the Service require State 
concurrence with recommendations when related to resources under State 
authority; others were specifically concerned with the Policy's 
interface with current mitigation systems.
    Response: We agree that alignment with local mitigation efforts 
mutually

[[Page 83452]]

benefits conservation agencies, and this Policy formally recognizes the 
shared responsibility with State, local, and tribal governments, and 
other Federal agencies and stakeholders. We look forward to using 
existing means of engagement at the local and State level, when working 
with the States, tribes, and other partners through existing 
authorities while developing programs to seek common goals and avoid 
inconsistency.
    Comment (44): Several commenters requested more information 
specifically on how conflicts between agencies or regulations, plans, 
or mitigation or permitting requirements would be handled.
    Response: Conflicts between agencies are handled through direct 
engagement and through existing mechanisms that will be unchanged by 
this Policy. For example, in NEPA, regulations at 40 CFR part 1504 
establish procedures for referring Federal interagency disagreements 
concerning proposed major Federal actions that might cause 
unsatisfactory environmental effects to the Council on Environmental 
Quality. The same regulations provide means for early resolution of 
such disagreements. In CWA permitting processes, disagreements over 
issuance of specific permits or on policy issues between the Service 
and Corps or between EPA and the Corps are resolved following 
procedures established at section 404(q) of that act and detailed 
within a Memorandum of Agreement between the agencies. The Corps/EPA 
joint 2008 Compensatory Mitigation Rule also features a dispute 
resolution process for agencies to resolve disagreements concerning the 
approval of mitigation banks or in-lieu-fee programs. We will continue 
to use existing processes.
    Comment (45): One commenter requested that the Service include 
requirements that all mitigation data, including data associated with 
amount and type of mitigation, ecological outcomes, landscape scale and 
conservation plans used in mitigation planning, and monitoring be made 
public in an easily accessible manner, such as being submitted 
electronically to publicly available databases.
    Response: We agree that data should be made broadly available to 
facilitate future conservation at a landscape level, dependent on the 
relevant regulations under which the mitigation is required. If there 
is the potential for disclosure of personal, private, or proprietary 
information, there are limitations on the Service's or other agencies' 
ability to require public availability. While most of the Service's 
mitigation authorities allow for recommendations, the ability to 
disclose monitoring data may be at the discretion of another agency. A 
blanket requirement to post all monitoring data to public databases 
would, therefore, be beyond the scope of this Policy.

M. Assessment

    Comment (46): One commenter stated that indirect effects from some 
actions are greater than the direct effects and should, therefore, be 
made more prominent in the Policy.
    Response: We added indirect and cumulative impacts to section 5.3 
of the Policy.
    Comment (47): Several commenters expressed concern regarding the 
use of best professional judgment during and as subjective predictions 
of impact, as described in section 5.3.4. Some commenters seemed 
particularly concerned about coincidental changes in magnitude of 
probable impacts caused by indirect sources, or those falling outside 
Service jurisdiction, such as climate change.
    Response: The Service, in section 5.3, allows use of ``best 
professional judgment'' using information described in the remainder of 
that section (recognition of and adjustment for uncertainty, use of 
information provided by the action proponent, and best available 
methodologies to predict impact). Thus, even where predictions may be 
uncertain, the Service will support decisions on the best available 
scientific information. As with many of the decisions made in impact 
analysis, prediction of impacts through time must occur on a project-
by-project basis, under the authority at hand, with information most 
appropriate for the site or region of impact. We look forward to using 
existing means of engagement at the local and State level, when working 
with the States, tribes, and other partners through existing 
authorities while developing programs and additional guidance to seek 
mutual goals and avoid inconsistency.
    Comment (48): Multiple commenters stated that assessment 
methodologies should be designed to ensure predictable mitigation 
credits, measure both beneficial and adverse effects, and be based on 
biological and/or habitat conditions that are accurate, sensitive, 
repeatable, and transparent. Two commenters were concerned that the 
Service should provide additional guidance to Federal and State 
agencies to avoid inefficiencies, and provide clarification in 
methodologies.
    Response: As with many of the decisions made in impact analysis, 
determination of appropriate assessment methodologies must occur on a 
project-by-project basis, under the authority at hand, with information 
most appropriate for the site or region of impact. Section 5.3.3 allows 
the Service flexibility in methodology to meet this need by allowing 
use of any methodology that compares present to predicted conditions, 
measures beneficial and adverse impacts by a common metric, and 
predicts effects over time. We look forward to using existing means of 
engagement with the States, tribes, and other partners through existing 
authorities while developing programs and additional guidance to seek 
mutual goals and avoid inconsistency.
    Comment (49): One commenter suggested that ``key ecological 
attributes'' (KEA) be used as a landscape-scale mitigation framework to 
guide impact assessment and ensure ``like for like'' benefits. The 
commenter categorized KEAs as: (1) Size (measure of a resource's area 
of occurrence or population abundance); (2) condition (measure of the 
biological composition, structure, and biotic interactions that 
characterize the space in which the resource occurs); and (3) landscape 
context (assessment of the resource's environment including the 
ecological processes and regimes that maintain it, and connectivity 
that allows species to access habitats and resources or allows them to 
respond to environmental change through dispersal or migration).
    Response: While use of the assessment approach involving 
application of KEAs would be consistent with the assessment principles 
and attributes of the best available effect assessment methodologies 
that we describe in section 5.3, we do not specify use of specific 
methodologies because the Policy's breadth of geographical, ecological, 
and authority coverage warrant flexibility.
    Comment (50): One commenter stated the Policy should provide 
science quality standards while another commenter stated that science 
provided by a project proponent to support a mitigation action should 
be evaluated fairly.
    Response: As stated in the Policy, 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. This will 
include an objective evaluation of science-based information provided 
by the project proponent.

[[Page 83453]]

N. Evaluation Species

    Comment (51): Numerous commenters expressed opinions and concerns 
on how the evaluation species should be selected. Suggestions focused 
on coordination with States and other parties and on selecting species 
identified in local government plans that have met appropriate 
standards or in State Wildlife Action Plans.
    Response: The Policy is not meant to be exhaustive in identifying 
the resources or characteristics of evaluation species. The Service 
recognizes that there may be existing plans (e.g., local government 
plans, State Wildlife Action plans) other than those identified in the 
Policy as well as other characteristics that may be useful in 
mitigation planning depending on the specific action and the affected 
resources. We agree that the use of existing plans such as State 
Wildlife Action plans or other sources that have established species 
conservation objectives will be useful in selecting evaluation species 
within the affected area. The Service will work with project proponents 
and other stakeholders in reviewing existing plans and identifying 
evaluation species for a specific action following the guidance 
outlined in section 5.4, Evaluation Species.
    Comment (52): One commenter stated that section 5.4, Evaluation 
Species should be expanded to focus beyond evaluation species to 
species and their habitats for use in impact assessments and mitigation 
planning.
    Response: Section 5.4 in the Policy adequately addresses the 
identification and characteristics of evaluation species, and does not 
need to be expanded. The purpose of selecting evaluation species is 
part of the Policy's framework to evaluate affected habitats and make 
mitigation recommendations based on their scarcity, suitability, and 
importance to achieving conservation objectives as discussed in section 
5.5, Habitat Valuation.
    Comment (53): A number of commenters suggested that the Policy's 
approach to evaluation species will expand the Service's jurisdiction 
to all wildlife and that mitigation will be required for species (and 
habitats) for which there is no direct statutory or regulatory 
obligation.
    Response: Evaluation species are a utility used by agencies in 
mitigation planning. The Service defines them as the fish, wildlife, 
and plant resources in the affected area that are selected for effects 
analysis and mitigation planning. We need evaluation species because we 
cannot exhaustively assess all impacts and formulate mitigation for all 
resources affected by a proposed action. The purpose of Service 
mitigation planning is to develop a set of recommendations that, if 
implemented with the proposed action as a package, would achieve 
conservation objectives for the affected resources. Accordingly, the 
Service would select evaluation species for which conservation 
objectives have the greatest overlap with the effects of a proposed 
action. The Service will select others to represent the suite of fish 
and wildlife impacts caused by an action. The Policy provides guidance 
for selecting evaluation species and is not a means of expanding our 
jurisdiction. Evaluation species are, in effect, a planning tool and 
were a major feature of the 1981 Policy.
    Comment (54): A number of commenters addressed the selection of 
evaluation species in those instances identified in the Policy where an 
evaluation species does not need to occur within the affected habitat: 
Species identified in an approved plan that includes the affected area, 
or the species is likely to occur in the affected area during the 
reasonably foreseeable future with or without the proposed action due 
to natural species succession. One commenter stated that the Policy 
places clear and defined limits on what constitutes both the 
``reasonably foreseeable future'' and ``natural species succession'' 
when selecting evaluation species so mitigation actions are not overly 
expansive. Some commenters questioned the Service's authority to expand 
the scope of analysis to species that do not occur in the affected area 
but could occur at some point in the foreseeable future due to natural 
species succession.
    Response: The selection of evaluation species that is not currently 
present in the affected area was a component of the Service's 1981 
Policy. Under this Policy, the Service retains the ability to consider 
such selections, as authorities permit. Such selections will be subject 
to the conditions described in section 5.4 and are not a means of 
expanding the Service's authorities.
    Comment (55): A few commenters stated that there is no basis for 
evaluating other non-listed species when assessing actions under the 
ESA, while another commenter expressed concern that the consultation 
and permitting for specific species will be complicated by the addition 
of evaluation species resulting in additional analysis and costs.
    Response: Nothing in this Policy supersedes statutes and 
regulations governing treatment of federally listed species. Section 
5.4, Evaluation Species, provides guidance on the selection of 
evaluation species that the Service will recommend in the assessment of 
affected resources and mitigation planning. The Service will recommend 
the smallest set of evaluation species necessary to relate the effects 
of an action to the full suite of affected resources. In instances 
where the Service is required to issue a biological opinion, permit, or 
regulatory determination for a specific species, that species will be, 
at a minimum, identified as an evaluation species. The recommendation 
to use additional evaluation species will depend on the specific 
project and affected resources. Use of evaluation species beyond 
federally listed species will improve conservation outcomes for other 
resources affected by an action, but the Policy does not require such 
usage.
    Comment (56): One commenter stated that the Policy creates a new 
category of species by using evaluation species.
    Response: Evaluation species is not a new term and has been brought 
forth from the Service's 1981 Policy. Section 5.4, of the Policy, 
Evaluation Species, provides additional guidance on the selection and 
use of evaluation species to assess impacts and develop mitigation 
strategies.

O. Habitat Valuation

    Comment (57): Several commenters requested the Service provide 
additional details on habitat valuation in section 5.5 of the Policy. 
To avoid the potential for ``lengthy disputes'' between the Service and 
other stakeholders in mitigation planning, some recommended including 
measurable/repeatable metrics in the Policy for quantifying habitat 
scarcity, suitability, and importance. Others wanted a very clear 
standard for identifying ``habitats of high-value,'' for which the 
Policy guidance is to avoid all impacts.
    Response: The scope of the Policy covers all authorities that give 
the Service a role in mitigating the impacts of actions to fish and 
wildlife resources, which encompasses a broad range of action types and 
species. The types and quality of available information vary widely 
across this range; therefore, highly prescriptive methods of habitat 
valuation are not advisable. Scarcity, suitability, and importance are 
the characteristics most relevant to our purpose for habitat valuation, 
which is to inform the relative emphasis we place on avoiding, 
minimizing, and compensating for impacts to the conservation of 
evaluation species. Our definitions of these parameters are 
sufficiently clear to provide useful guidance to Service personnel in

[[Page 83454]]

formulating mitigation recommendations to action proponents. However, 
we have revised the Policy to clarify that ``habitats of high-value'' 
are those that are rare and both highly suitable for, and important to, 
the conservation of the evaluation species.
    Our authority to require specific mitigation actions of action 
proponents is limited, and is governed by the regulations of the 
statute that confers such authority, not this Policy. Our goal with 
this Policy is to provide a common framework for the Service to apply 
when identifying mitigation measures across the full range of our 
authorities to promote better conservation outcomes for species. 
Service personnel are obligated to explain mitigation recommendations, 
including our valuation of the affected habitats. Action proponents may 
adopt or reject Service recommendations about how they may maintain or 
improve the status of species as part of their proposed actions. 
Therefore, we do not anticipate ``lengthy disputes'' between the 
Service and action proponents over habitat valuations.
    Comment (58): Several commenters recommended that the Service use 
habitat valuation as the basis for variable mitigation standards or 
goals, similar to the 1981 Policy.
    Response: This Policy adopts a minimum goal of no-net-loss for 
mitigating impacts to evaluation species, regardless of the value of 
the affected habitat, which is a fundamental change relative to the 
1981 Policy. Instead of determining variable objectives that apply to 
affected habitats, variable habitat value informs the priority we 
assign to avoid, minimize, and compensate for impacts to evaluation 
species. Our rationale for this change is that all occupied habitats 
contribute to the current status of an evaluation species. Discounting 
the contribution of lower value habitat would increase the difficulty 
of achieving conservation objectives for evaluation species. However, 
we recognize that to maintain or improve a species' status, it is more 
efficient to avoid and minimize impacts to higher value habitats, and 
to minimize and strategically compensate for impacts to lower value 
habitats. The Service will engage action proponents in mitigation 
planning only when we have authority to do so and when an action may 
adversely affect resources of conservation interest to a degree that 
warrants application of the Policy.
    Comment (59): Two commenters recommended the Service retain the 
four Resource Categories of the 1981 Policy.
    Response: In the 1981 Policy, the Resource Categories established 
variable mitigation objectives based on habitat value, which was a 
function of scarcity and suitability. Under this Policy, the objective 
is a minimum of no net loss, regardless of habitat value. Instead, 
habitat value informs the priority we assign to avoid, minimize, and 
compensate for impacts. By adding habitat ``importance'' to the 
scarcity and suitability parameters of the 1981 Policy, the revised 
Policy more explicitly integrates mitigation recommendations with 
conservation strategies applicable to the evaluation species. Our 
valuation considers all three parameters, and we will seek to avoid and 
minimize impacts to habitats of higher value, and to minimize and 
compensate for impacts to habitats of lower value. We considered 
prescribing a prioritization of mitigation types through a revised 
resource category system but determined that it added little practical 
value beyond stating that we should recommend avoiding impacts to rare 
habitats that are of both high suitability and importance (the 
equivalent of Resource Category 1 in the 1981 Policy) and give greater 
emphasis to compensating for impacts to low-value habitats.
    Comment (60): Three commenters expressed specific concerns about 
the three habitat-valuation parameters, each recommending possible 
revisions/substitutions. One stated that our definition of importance 
was mostly a function of scarcity and/or suitability, and suggested 
substituting ``irreplaceability'' and ``landscape position'' as more 
independent parameters. Another suggested that ``unique and 
irreplaceable'' was the criterion for recommending avoiding all impacts 
to a habitat, as opposed to high-value assessed by all three valuation 
parameters. The third urged the Service to use ``vulnerability'' as an 
additional parameter.
    Response: Our definitions of the three habitat-valuation parameters 
are distinct and do not overlap, but we recognize potential 
correlations between the parameters (e.g., rare habitats of high 
suitability are very likely also of high importance). Our definition of 
importance captures the significance of a location in the conservation 
of a species, regardless of its scarcity or suitability, and we 
disagree that importance is mostly a function of scarcity and 
suitability. The definition of importance refers to both the ability to 
replace the affected habitat and its role in the conservation of the 
evaluation species as a core habitat, a linkage between habitats, or 
its provision of a species-relevant ecological function. Therefore, 
``irreplaceability'' and ``landscape position'' are already considered 
in the importance parameter.
    A ``unique'' habitat is the rarest valuation possible on the 
scarcity parameter, and an ``irreplaceable'' habitat rates high on the 
importance parameter. The third parameter, suitability, is defined as 
``the relative ability of the affected habitat to support one or more 
elements of the evaluation species' life history compared to other 
similar habitats in the landscape context.'' A unique habitat would 
have no other similar habitats in the relevant landscape context for 
comparative purposes; therefore, its suitability is not assessable. In 
practice, if a unique and irreplaceable habitat is supporting an 
evaluation species, we will consider it as a ``high-value'' habitat 
under this Policy.
    Our view of ``vulnerability'' as a habitat-valuation parameter is 
that it is difficult to define and assess consistently. A workable 
definition would likely overlap substantially with the scarcity 
parameter, which is more readily evaluated given data about the spatial 
distribution of a habitat type in the relevant landscape context, and 
also with the replicability concept under the importance parameter. 
Regardless whether a non-overlapping definition is possible, adding 
vulnerability as a fourth habitat-valuation parameter would then dilute 
the influence of the other three. Scarcity and suitability, which were 
features of the 1981 Policy, and importance, which is applicable to 
interpreting how conservation plans describe the significance of 
particular areas, are each amenable to reasonably consistent assessment 
by Service personnel. These three parameters sufficiently serve the 
purpose of habitat valuation under this Policy, which is to prioritize 
the type of mitigation we recommend.
    Comment (61): One commenter suggested that when more than one 
evaluation species uses an affected habitat, some situations may 
warrant not using the highest valuation to govern the Service's 
mitigation recommendations, contrary to the Policy's guidance in 
section 5.6.3. The commenter offered the following example of such a 
situation. An affected habitat is used by two evaluation species; but 
regulatory requirements (e.g., ESA compliance) apply to the species 
associated with the lower habitat valuation, and conservation bank 
credits are available to compensate for impacts to this species. Two 
other commenters requested clarification of

[[Page 83455]]

the Service's methodology for valuation of a habitat used by multiple 
evaluation species.
    Response: Because the goal of the Policy is to improve, or at 
minimum, maintain the current status of evaluation species, the 
Policy's guidance to assign the highest valuation among evaluation 
species associated with an affected habitat most efficiently achieves 
this goal for all evaluation species. Avoiding or minimizing impacts to 
the higher value habitat reduces the level of compensation necessary to 
achieve the Policy goal for both species. The availability of 
conservation bank credits, while advantageous, should not dictate 
Service recommendations for achieving the Policy goal.
    Although species to which regulatory requirements apply, such as 
species listed under the ESA, are automatic evaluation species under 
the Policy, the Policy does not assign priorities among evaluation 
species. Accordingly, our habitat-valuation methodology is the same 
whether one or multiple evaluation species use an affected habitat. The 
scarcity parameter is not species-specific; however, the suitability 
and importance parameters are. A particular affected habitat is not 
necessarily of the same suitability for and importance to different 
evaluation species and may, therefore, receive different valuations. 
The highest valuation informs the relative priority for avoiding, 
minimizing, and compensating for impacts.

P. Mitigation Hierarchy

    Comment (62): We received comments from many entities related to 
our use of the mitigation hierarchy concept in the Policy. Most 
expressed support for strict adherence to the avoid-minimize-compensate 
sequence of the hierarchy and concern that the Policy's recognition of 
circumstances warranting a departure from this preferred sequence 
provides Service personnel an inappropriate amount of discretion. 
Others supported such departures and requested greater specificity in 
defining the circumstances that would justify greater emphasis on 
compensation.
    Response: The first three general principles listed in section 4 
will guide the Service's application of the mitigation hierarchy: (a) 
The goal is to improve or, at minimum, to maintain the current status 
of affected resources; (b) observe an appropriate mitigation sequence; 
and (c) integrate mitigation into a broader ecological context with 
applicable landscape-level conservation plans. Action- and resource-
specific application of these principles under the framework of section 
5 will determine the relative emphasis that Service mitigation 
recommendations afford to measures that avoid, minimize, and compensate 
for impacts.
    We are clarifying Service determinations of ``high-value habitat,'' 
for which the Service recommendation is to avoid all impacts. 
Consistent with our commitment to the mitigation hierarchy under 
Principle ``b'' of section 4, the Service will not recommend 
compensation as the sole means of mitigating impacts when practicable 
options for avoiding or minimizing impacts are available. However, to 
achieve the Policy's goal of maintaining or improving the status of 
evaluation species, all Service mitigation recommendations will 
necessarily include some degree of compensation, unless it is the rare 
circumstance where it is possible to avoid all impacts while still 
accomplishing the purpose of the action or we are compelled to 
recommend the no-action alternative. Our habitat-valuation guidance 
(section 5.5) informs the relative emphasis we place on the mitigation 
types in the hierarchy. Higher valued habitats warrant primarily 
avoidance and minimization measures, in that order, to the maximum 
extent practicable. Compensation is likely, but not necessarily, a more 
effective means of maintaining or improving the status of species 
affected in lower valued habitats. Applicable conservation plans for 
the evaluation species (Principle ``c'' of section 4) will inform 
Service personnel whether compensation should receive greater emphasis. 
Service personnel are obligated to explain recommendations per the 
guidance of section 5.8, Documentation.
    Comment (63): One commenter stated the Policy should include a 
mechanism to credit a project proponent for implementing avoidance or 
minimization measures.
    Response: Avoidance and minimization are components of the 
mitigation hierarchy. Impacts that are avoided will negate the need for 
further mitigation measures. Impacts that are minimized will lessen the 
need to reduce, rectify, and compensate for residual impacts.
    Comment (64): One commenter requested the Policy clarify how 
mitigation credits will be calculated at banking sites and that the 
Policy should provide for the ability to ``stack'' credits. Another 
commenter suggested the Policy include the definition of the term 
``credit.''
    Response: This is not a compensatory mitigation policy. It is 
beyond the scope of this Policy to provide detailed procedural or 
operational information. Based on the applicable authority, such 
implementation detail for compensatory mitigation processes is provided 
in other regulatory or policy documents. For example, details for CWA 
processes is provided through regulation (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). For ESA processes, the Service 
expects to finalize such guidance through policy (see proposed ESA 
Compensatory Mitigation Policy at (81 FR 61032-61065, September 2, 
2016)).

Q. Avoidance

    Comment (65): Several commenters strongly supported the Policy's 
statements on avoidance, or said the Policy should increase the 
emphasis on avoidance generally, and especially with respect to the 
most highly valued resources. They suggested the Policy more strongly 
acknowledge that some habitats are unique and irreplaceable, making the 
``no action'' alternative the only way of achieving conservation goals 
for species that depend on those habitats. They added that ensuring the 
long-term protection of high-value habitat is especially critical for 
imperiled species.
    Some commenters said the Policy should not require avoidance of all 
impacts to high-value habitats, as strict adherence to this measure has 
the potential to stop crucial infrastructure projects. They said 
requiring avoidance of high-value habitats and imposing limitations on 
timing, location, and operation of the project will result in added 
project costs. They proposed that avoidance recommendations be made or 
implemented on a case-by-case basis. Some commenters suggested the 
Policy clarify the Service's authority for recommending a ``no action'' 
alternative. One commenter said the Service cannot recommend avoidance 
of all impacts when such a position would deny a property owner any 
beneficial use of their property. Otherwise, a regulatory taking would 
result. Commenters said that because the Service has no basis to deny 
an action, the Policy should expressly state it does not allow for the 
Service to veto proposed projects on which it consults.
    Response: We agree the proposed Policy's existing statements 
regarding recommendation of avoidance of impacts to high-value habitats 
are important themes, as they were in the 1981 Policy. For clarity, we 
have edited section 4, General Policy and Principles, to add a 
principle highlighting the

[[Page 83456]]

Service's policy of recommending avoidance of high-value habitats.
    This Policy provides a common framework for identifying mitigation 
measures. It does not create authorities for requiring mitigation 
measures to be implemented. The authorities for reviewing projects and 
providing mitigation recommendations or requirements derive from the 
underlying statutes and regulations. On a case-by-case basis, as noted 
in the Policy at section 5.7, Recommendations, we may recommend the 
``no action'' alternative when appropriate and practicable means of 
avoiding significant impacts to high-value habitats and associated 
species are not available. These recommendations will be linked to 
avoiding impacts to high-value habitats. Depending on the spatial 
configuration and location of habitats relative to project elements, 
recommending avoidance of all impacts to high-value habitats will not 
always equate to recommending no action.
    Also, we note that the Policy does not indicate avoidance of all 
high-value habitats is required. The Policy provides guidance to 
Service staff for making a recommendation to avoid all high-value 
habitats or to adopt a ``no action'' alternative in certain 
circumstances. If we provide such materials to an action agency for 
consideration in their authorization process, a regulatory taking would 
not result from making recommendations. This Policy will not 
effectively compel a property owner to suffer a physical invasion of 
property and will not deny all economically beneficial or productive 
use of the land or aquatic resources. This Policy provides a common 
framework for the Service to apply when identifying mitigation measures 
across the full range of our authorities, including those for which we 
may require mitigation. This broad program direction for the Service's 
application of its various authorities does not itself result in any 
particular action concerning a specific property. In addition, this 
Policy substantially advances a legitimate government interest 
(conservation of species and their habitat) and does not present a 
barrier to all reasonable and expected beneficial use of private 
property.
    Comment (66): Three commenters said identifying and requiring 
avoidance of all high-value habitat conflicts with the statutory and 
regulatory requirements of the ESA. They pointed out that regulations 
at 50 CFR 402.14(i)(2) state reasonable and prudent measures cannot 
alter basic design, location, scope, duration, or timing of an action. 
They said the Service would prohibit any activity impacting areas 
determined to be high-value habitat and that no such parallel requiring 
complete avoidance exists under the ESA. They said the Service has no 
authority to mandate the complete avoidance of designated critical 
habitat or require all impacts to critical habitat be offset with 
mitigation measures that achieve a net gain or no net loss.
    Response: The Policy does not prohibit any activity impacting areas 
determined to be high-value habitat. The Policy provides guidance to 
Service staff for making a recommendation to avoid all high-value 
habitats or to adopt a ``no action'' alternative in certain 
circumstances. Through the Policy, we are neither requiring nor 
mandating the complete avoidance of designated critical habitat. 
Regulations and procedures that implement the ESA are not superseded. 
The Policy does apply 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 the Policy is 
intended, in part, to clarify the role of mitigation in endangered 
species conservation, nothing in it replaces, supersedes, or 
substitutes for the ESA implementing regulations. In early stages of 
interagency consultation under the ESA, we routinely provide advice to 
action agencies on avoiding impacts to listed species and designated 
critical habitats that may be reflected in subsequent project 
descriptions or in action agency permits or authorizations. The 
provision of that advice is consistent with the Policy's guidance to 
Service staff on recommending avoidance of all high-value habitats.
    Comment (67): One commenter said requiring onsite avoidance can 
lead to piecemeal mitigation and undermines the goal of supporting 
regional mitigation planning. They suggested removing the preference 
for onsite avoidance over compensatory mitigation to better support 
regional mitigation planning goals.
    Response: The Service agrees that defaulting to avoidance can, in 
some cases, result in a less desirable outcome than pursuing 
compensatory mitigation elsewhere that better serves broader landscape-
level conservation goals. However, in the Policy, we note that those 
cases involve impacts to lower value habitats. Even then, the Service 
will consider avoidance, consistent with the mitigation hierarchy. For 
the most highly valued habitats, the Policy guides Service staff to 
recommend avoidance. If adopted, recommendations to avoid impacts to 
high-value habitats directly support regional mitigation planning by 
ensuring the scarcest, most suitable, and most important habitats 
within a landscape remain unaltered.
    Comment (68): Three commenters discussed whether avoidance of all 
impacts to high-value habitats is always necessary or desirable. They 
asked what the Service's response would be when an action is likely to 
be implemented despite recommendations to avoid high-value habitats. 
They suggested the Policy recognize that avoidance of all impacts to 
high-value habitats is not always necessary or practicable, and that 
unavoidable impacts to those resources will sometimes be authorized.
    Response: Through this Policy, we provide guidance to Service staff 
that recommendations should seek to avoid all impacts to habitats they 
determine to be of high-value. Therefore, our policy is that it is 
always desirable to avoid impacts to high-value habitats. We recognize 
circumstances will vary, and in section 5.7, Recommendations, we note 
that 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. We 
further recognize that our recommendations, either to avoid all impacts 
to high-value habitats or to adopt the no action alternative if 
necessary, will not be adopted or implemented by action agencies in all 
cases.

R. Compensatory Mitigation

    Comment (69): Several commenters said they strongly supported 
application of equivalent standards for compensatory mitigation 
mechanisms as advocated by the Policy. One commenter said that, without 
equivalency, mitigation programs with lower standards will have 
competitive pricing advantages that create a ``race to the bottom'' as 
developers seek the lowest cost compliance option, producing lower 
conservation outcomes and undermining chances of species recovery. 
Several said the Policy should give greater emphasis to the sentence: 
``The Service will ensure the application of equivalent ecological, 
procedural, and administrative standards for all compensatory 
mitigation mechanisms.'' These commenters felt that, while the Policy's 
intent to support equivalent standards is clear, the statement is not 
easily located within a paragraph in section 5.6.3. They suggested 
creating a new paragraph with this sentence as the lead, or creating a 
new subsection titled ``Equivalent Standards'' under the existing 
section 5.6. Two commenters said equivalent standards should be

[[Page 83457]]

required by the Policy. One commenter said a monitoring and 
verification process should be required of all mitigation.
    Response: We agree with the commenters that equivalent standards 
must be applied to ensure compensatory mitigation is successfully 
implemented regardless of the mechanism used to provide the mitigation. 
A level playing field allows for more transparency, fairness, and a 
greater likelihood of successful mitigation. In this Policy, we do not 
state that equivalent standards are required because of the breadth of 
authorities and processes it covers. In many cases, our authority is 
advisory, with the permitting authority resting with another agency. In 
such cases, requiring equivalent standards is another agency's 
provision to implement or enforce. This Policy covers multiple 
authorities, so it would be inaccurate to state that it can require 
equivalent standards in all cases. However, the Policy's statement of 
support for application of equivalent standards is accurate in all 
cases. Similarly, we support the monitoring and verification processes 
suggested by one commenter, but cannot provide a blanket requirement 
for such processes through this Policy. We agree with the commenters 
who suggested that our support for equivalent standards is not well 
highlighted or located within the Policy. We have now placed the 
information under a header for a new section 5.6.3.1, Equivalent 
Standards.
    Comment (70): One commenter supported the Policy's definition of 
``additionality,'' while two commenters expressed concern for the use 
of the term ``baseline'' in defining additionality and suggested the 
Policy distinguish between baseline and pre-project or pre-existing 
conditions.
    Response: For purposes of the Policy, the baseline is the existing 
condition that will be used as the starting point by which to compare 
the adverse or beneficial effects of an action. In assessing 
compensatory mitigation, the Service will evaluate if the proposed 
mitigation measures are demonstrably new and would not have occurred 
without the compensatory mitigation measure and if they provide a 
conservation benefit above the baseline condition (i.e., 
additionality). We have included the definition of baseline in section 
6.
    Comment (71): Several commenters requested the Service recognize in 
the Policy the ability of proponents to transfer responsibility for 
compensatory mitigation actions they initiate to a third party.
    Response: We have revised the Policy to recognize that third 
parties may assume responsibility for implementing proponent-
responsible compensation. This Policy advocates equivalent ecological, 
procedural, and administrative performance standards among all 
compensatory mitigation mechanisms. Therefore, conversion of a 
proponent-responsible plan to one administered by a third party is 
inconsequential relative to the Policy's goals. The third party 
accepting responsibility for the compensatory actions would assume all 
of the proponent's obligations to ensure success and durability.
    Comment (72): One commenter suggested the Policy indicate that 
Service-approved conservation banks for aquatic and aquatic-dependent 
species may also serve the purpose of compensating for impacts to 
waters regulated under the CWA, but that the Corps has discretion to 
use a conservation bank for those purposes.
    Response: We agree that a wetland protected and managed as a 
conservation bank to compensate for impacts to species may also serve 
as a wetland mitigation bank, provided the Corps has approved the bank 
for that purpose. Because the Policy addresses mitigation for impacts 
to fish and wildlife species and not impacts to regulated wetlands, per 
se, the comment exceeds the scope of this Policy and does not warrant a 
specific revision. However, we intend to address operational 
considerations for compensatory mitigation mechanisms in step-down 
policies, such as the proposed ESA Compensatory Mitigation Policy (81 
FR 61032-61065, September 2, 2016).
    Comment (73): One commenter questioned whether measures that are 
considered ``onsite compensation'' in the context of permitting 
processes under the CWA (i.e., restoring, enhancing, and/or preserving 
wetlands on or adjacent to the impact site) are considered a form of 
minimization under the Policy. The commenter noted section 5.6.3 
indicates that compensation occurs ``generally in an area outside the 
action's affected area,'' but also refers to compensation sites that 
are either ``within or adjacent to the impact site.''
    Response: The Policy adopts the five mitigation types defined in 
the NEPA regulations. We include ``rectifying the impact by repairing, 
rehabilitating, or restoring the affected environment'' (rectify) and 
``reducing or eliminating the impact over time by preservation and 
maintenance operations during the life of the action'' (reduce) under 
the ``minimizing'' label, but have not discarded these definitions, 
which have specific utility for species conservation. Our purpose for 
consolidating the five NEPA mitigation types into three was to align 
the general language of this Policy with that of the existing three-
tiered DOI and CWA mitigation policies (avoid, minimize, and 
compensate). We group ``rectify'' and ``reduce'' with ``minimization'' 
to recognize the priority of these types of measures over compensation 
in the mitigation hierarchy, because such measures are, by definition, 
onsite measures focused specifically on the action-affected resources. 
We recognize that, unlike proactive minimization measures, measures to 
rectify and reduce impacts over time occur after impacts and are, 
therefore, more similar to compensation measures. Compensation 
replaces, or provides substitute resources or environments for, the 
affected resources, not necessarily within the affected area. Replacing 
or providing an onsite substitute for an affected resource meets the 
definition of rectify, but in the three-tier scheme of mitigation under 
CWA processes, is typically called onsite compensation. Because this 
Policy addresses species and not waters of the United States, some 
differences in terminology with mitigation under the CWA are 
unavoidable.
    Under this Policy, which has not discarded the definition of 
rectify, ``onsite compensation'' has a narrower meaning. Onsite 
compensation involves provision of a habitat resource within the action 
area that was not adversely affected by the action, but would 
effectively address the action's effect on the conservation of the 
evaluation species. For example, an action reduces food resources for 
an evaluation species, but water availability in dry years is a more 
limiting factor to the species' status in the affected area. Increasing 
the reliability of water resources onsite may represent a practicable 
measure that will more effectively maintain or improve the species' 
status over some degree of rectifying the loss of food resources alone, 
even though the action did not affect water availability. This Policy 
would identify measures to restore food resources as rectification and 
measures to increase water availability as onsite compensation.
    Comment (74): Five commenters addressed the Policy's reference to 
habitat credit exchanges among available compensatory mitigation 
mechanisms. Two commenters expressed support for the inclusion of 
habitat credit exchanges, but one commenter said that they should be 
excluded because there are no existing

[[Page 83458]]

examples that demonstrate the viability of the concept. Three 
commenters said the Policy should emphasize that equivalent standards 
apply to habitat credit exchanges as well as all other compensatory 
mitigation mechanisms. Two commenters said the Policy should further 
define habitat credit exchanges.
    Response: We agree with the majority of the commenters that 
defining and clarifying the role of habitat credit exchanges as a 
potential compensatory mechanism is prudent. In section 6, we have 
added the definition of habitat credit exchange. We confirm that all 
compensatory mitigation mechanisms, including habitat credit exchanges, 
must meet equivalent standards. Habitat credit exchanges in concept are 
not new. They are the species equivalent to the environmental market 
mechanisms established for carbon and water quality trading. Exchanges 
are emerging where wide-ranging species cross multiple natural and geo-
political boundaries and a mechanism to engage vast numbers of 
participants is desired. At its core, a habitat credit exchange is a 
trading platform and, therefore, may encompass other compensatory 
mitigation mechanisms such as conservation banks.
    Comment (75): One commenter expressed concern that ``performance 
standards'' are included among the 12 considerations for compensatory 
mitigation mechanisms in section 5.6.3, but are not mentioned in 
section 5.8 about documenting final Service recommendations. The 
commenter recommended the Service require performance standards in 
mitigation plans that address the full range of measures adopted 
(avoidance, minimization, and compensation), not just compensatory 
measures.
    Response: We agree mitigation plans should include performance 
standards that address the effectiveness (degree to which objectives 
are achieved) of any mitigation means and measures (avoid, minimize, 
compensate) for which the outcome is relatively uncertain. Although 
such uncertainty is generally greatest for compensatory measures 
involving future habitat improvements to offset unavoidable impacts, 
the success of planned avoidance and minimization measures is not 
always assured and may require monitoring. To handle uncertainty, 
section 5.8 indicates that Service-recommended/approved mitigation 
plans should specify measurable objectives, associated effectiveness 
monitoring, and additional adaptive management (i.e., corrective) 
actions as indicated by monitoring results. These final plans address 
the full range of mitigation means and measures that are reasonable and 
appropriate to ensure the proposed action improves or, at minimum, 
maintains the current status of affected species and their habitats. We 
did not use the phrase ``performance standards'' in section 5.8 as we 
did in section 5.6.3, and it is not necessary to do so. A compensatory 
mitigation plan that is prepared independently of a general mitigation 
plan for an impact-causing action (e.g., the instrument for operating a 
conservation bank or in-lieu fee program) will serve the compensation 
needs of one or more such actions, and both types of plans require 
objectives and appropriate effectiveness monitoring (i.e., performance 
standards).
    Comment (76): One commenter recommended the Policy explicitly 
require an equivalent assessment of impacts and offsets (i.e., the 
amount of compensation necessary to, at minimum, maintain the current 
status of the affected species after applying avoidance and 
minimization measures).
    Response: Section 5.3, Assessment, provides general guidance for 
estimating impacts and benefits. This guidance applies to assessing the 
effects of actions both with and without mitigation options. Section 
5.3 directs Service staff to use best available effects-assessment 
methodologies that meet various criteria, including the ability to 
estimate adverse and beneficial effects using ``common'' (i.e., shared 
or equivalent) metrics. We have revised this language to clarify that 
``common'' means ``equivalent,'' and have added an example to 
illustrate the concept. The example involves assessing effects to a 
species' food resource. The metric is the density or spatial extent of 
the food resource. Predicted decreases and increases in this metric 
represent adverse and beneficial effects, respectively.
    Comment (77): One commenter stated that the Service should not 
require the use of a mitigation or conservation bank over other 
mitigation mechanisms, and that the Service lacks authority to require 
financial assurances of action proponents.
    Response: We are clarifying the circumstances under which the 
Service may require the implementation of mitigation under the guidance 
of this Policy. Such circumstances are limited, and we expect our 
application of the Policy will most often occur in an advisory capacity 
to action proponents. The Policy expresses a preference for 
compensatory mitigation in advance of impacts, but the use of 
conservation banks or other compensation in advance of impacts is not a 
firm requirement, even when the Service is funding, approving, or 
carrying out the proposed action. To the same extent that the Service 
cannot require mitigation under all of the authorities that apply to a 
particular action, the Service cannot require financial assurances of 
action proponents in all cases (e.g., outside the ESA Habitat 
Conservation Plan context). Nevertheless, we are retaining the 
reference to financial assurances throughout the Policy as a prudent 
component of mitigation plans. Such assurances are a reasonable and 
practicable underpinning for reducing the uncertainty about achieving 
the objectives associated with mitigation plans, especially with 
compensatory activities intended to secure future benefits to the 
affected species.
    Comment (78): One commenter believed the Policy preference to 
compensate for impacts in advance of actions causing impacts would 
discourage voluntary actions to conserve species in order to avoid the 
need to list them as endangered or threatened under the ESA. The 
commenter suggested Service listing decisions would discount any 
habitat improvements that are identified, or could serve as advance 
compensation, presumably because the proponents of future actions 
causing impacts to the species would seek to claim such improvements as 
compensatory offsets. Over time, advance compensation improves the 
status of the species only to the extent that its benefits exceed the 
impacts of those future actions relying upon it; therefore, advance 
compensation does not necessarily preclude the need to list a species.
    Response: This Policy does not address listing decisions under the 
ESA. This comment addresses the purposes of the Service's proposed 
``Policy Regarding Voluntary Prelisting Conservation Actions'' (79 FR 
42525-42532, July 22, 2014), which is not yet finalized. The proposed 
Voluntary Prelisting Conservation Actions policy describes the 
Service's proposal to give credit to such actions in the event of a 
subsequent listing of the species. In the context of both section 7 and 
section 10 of the ESA, the Service proposes to recognize a proponent's 
previous conservation actions as offsets to the adverse effects of a 
proposed action within the framework of an established conservation 
plan for the species in States that participate in the prelisting 
conservation program. Regardless how the Service finalizes the 
Voluntary Prelisting Conservation Actions policy, this Policy expresses 
Service support for compensation in advance of impacts to species, and 
the Service will account for

[[Page 83459]]

advance compensation actions in its formulation of mitigation 
recommendations.
    Comment (79): Several commenters recommended the Policy address 
preferences for ``in-kind'' vs. ``out-of-kind'' compensatory measures. 
Some urged the Service to explicitly endorse out-of-kind measures, 
while others advised us to express a strong preference for in-kind 
measures as in the 2008 Mitigation Policy for CWA section 404 
permitting.
    Response: We do not use the terminology of ``in-kind'' vs. ``out-
of-kind'' compensation in this Policy. Unlike the Mitigation Policy for 
CWA section 404 permitting, where the subject resources are waters of 
the United States, the subject resources of this Policy are species. 
All compensatory mitigation recommended by the Service under this 
Policy is ``in-kind'' for the affected evaluation species (i.e., it 
must offset an action's unavoidable impacts to the same species). We do 
not express a preference for implementing compensatory measures in the 
same type of habitat(s) affected by the action. Based on a species' 
conservation needs and applicable plans/strategies to address those 
needs, Service personnel will determine whether in-kind or out-of-kind 
habitat compensation will provide the most practicable means of 
ensuring a proposed action improves or, at minimum, maintains the 
current status of the affected evaluation species.
    Comment (80): Two commenters recommended that the Policy recognize 
an action proponent's authorities/abilities to implement all mitigation 
measures onsite only, or to implement compensatory measures only within 
a particular jurisdiction.
    Response: The Service should not provide recommendations that 
others have no discretion to consider, and this Policy does not direct 
Service personnel to do so. Measures that avoid and minimize impacts 
apply within the area affected by the action, and proponents should 
generally have sufficient discretion to adopt and implement all such 
measures. The Service will respect the jurisdictional limitations of 
proponents to implement compensatory measures outside the affected 
area.
    Comment (81): A few commenters expressed concern that early or 
voluntary mitigation actions would not be recognized or given the 
appropriate crediting.
    Response: The Service supports early and voluntary mitigation 
actions and is committed to collaborating and coordinating with project 
proponents to assess the accrual of additional conservation benefits 
from such actions.
    Comment (82): A number of commenters addressed the concept of 
duration in relation to the durability of mitigation measures. Several 
commenters questioned the standard to maintain the intended purpose of 
the mitigation measure ``for as long as the impacts of the action 
persist on the landscape.'' These commenters suggested the duration of 
the mitigation site be correlated to the monitoring and maintenance 
period after which the mitigation sites should be allowed to evolve 
through natural successional processes rather than be required to 
maintain a specific condition. Another commenter recommended more 
objective or established timeframes such as length of the ``planning 
horizon'' or ``in perpetuity'' to characterize the duration of the 
mitigation. One commenter suggested the burden of proof be on the 
project proponent to demonstrate that impacts of a temporary duration 
have been removed before being released from a mitigation obligation.
    Response: The Service will recommend or require that mitigation 
measures be durable, and at minimum, maintain their intended purpose 
for as long as impacts of the action persist on the landscape. The 
Service acknowledges site-specific conditions may need to evolve 
through natural processes. For example, we expect riverine systems to 
scour and revegetate in cycles, causing species composition to vary at 
any one point in time but supporting targeted resources in the long 
term. In other circumstances, active management (e.g., controlled 
burning, grazing) may be needed to retain the intended purpose of the 
mitigation site for affected resources. Mitigation measures for 
permanent impacts will rely on permanent mitigation. When it can be 
demonstrated that impacts to affected resources are temporary, 
durability accounts for the time the effects of the action persist.
    Comment (83): One commenter noted the definition of ``durability'' 
only includes the concept of duration and not the implementation 
assurances needed to ensure the mitigation is durable, while another 
commenter suggested that reference be made to the elements ``a. thru 
i.'' as set forth in 81 FR 12380 at 12391 (March 8, 2016) as essential 
to the definition.
    Response: Durability is one of the fundamental principles that will 
guide Service mitigation recommendations to ensure mitigation measures 
maintain their intended purpose for affected resources for as long as 
impacts persist on the landscape. We agree with the commenters that 
implementation assurances are needed to ensure mitigation is durable. 
Section 5.6.3 identifies those elements intended to ensure successful 
implementation and durability of compensatory mitigation measures, 
including site-protection mechanisms, performance standards, 
monitoring, long-term and adaptive management, and provisions for 
financial assurances.
    Comment (84): Several commenters supported the approach described 
in the Policy regarding the limits on use of research or education as 
compensatory mitigation. Three commenters suggested that use of 
research/education as compensatory mitigation should be expanded. One 
commenter suggested we add additional implementation detail. For 
clarity, one commenter suggested moving the research/education material 
under a new header or section.
    Response: We agree with the commenters who said compensatory 
mitigation should provide tangible benefits and that research/education 
should be included in a mitigation package only in those limited 
circumstances described in the Policy. Exhaustive implementation detail 
on this topic is beyond the scope of this umbrella policy, which covers 
all Service mitigation authorities wherever they are carried out. Such 
detail may be contained in future step-down guidance or will be 
determined on a case-by-case basis by Service staff. We have 
reorganized the material into a new section 5.6.3.2.

S. Adaptive Management

    Comment (85): In general, commenters appeared to agree with the 
concept of adaptive management, as discussed in the Background section 
and other areas of the Policy. Several commenters suggested refinements 
to the Policy to increase certainty for project proponents. One 
commenter was concerned with regard to adaptive management's nexus with 
protections for federally listed species.
    Response: We agree the iterative process used during adaptive 
management serves to facilitate progress toward achieving defensible 
and transparent objectives. As this Policy is meant to guide the 
overall approach to mitigation planning while allowing the greatest 
flexibility for Service program needs, we expect further guidance will 
document specific requirements on specific elements included in 
documentation, including those related to adaptive management. Nothing 
in this Policy supersedes statutes and

[[Page 83460]]

regulations governing treatment of federally listed species.

T. Documentation

    Comment (86): Commenters asked that final recommendations include, 
in writing, all steps and clearly identify party responsibilities 
regarding implementation and performance of mitigation measures. One 
commenter requested more consistency between the 12 elements identified 
in section 5.6.3 and the section on final recommendations. Another 
commenter requested clarification of whether information provided by 
the Service through the Policy is a requirement or considered technical 
assistance.
    Response: The Policy indicates that documentation should be 
commensurate in scope and level of detail with the significance of the 
potential impacts to resources, in addition to providing an explanation 
of the basis for Service recommendations. As this Policy is meant to 
guide the overall approach to mitigation planning while allowing the 
greatest flexibility for Service program needs, we expect further 
guidance will document specific requirements on specific elements 
included in documentation. Section 5.6.3 describes the use of 
compensatory mitigation, one of the five general types of impact 
mitigation described under section 5.6, Means and Measures. Section 
5.6.3 includes several measures meant to ensure successful 
implementation and durability, specific to instances where compensatory 
mitigation is employed. The text in section 5.8, Documentation, has 
been modified to include the phrase: ``Where compensation is used to 
address impacts, additional information outlined in section 5.6.3 may 
be necessary.''

U. Monitoring

    Comment (87): Many commenters were concerned how this Policy would 
add predictability, efficiency, and timeliness. Some were particularly 
concerned about potentially variable interpretation among Service field 
offices. One recommended actual Policy implementation elements be 
separated due to complexity and provided as guidance, while two others 
stated the Policy was not specific enough to evaluate and ensure 
consistency. Several commenters requested a standardized process or 
system, with clear guidelines and methods for implementation, be 
established to determine effectiveness, monitor durability, and track 
performance to ensure compliance and deliver conservation benefits. One 
commenter was concerned that wildlife and habitat assessments 
envisioned by the Policy could entail complex analyses, while others 
said mitigation should be based on biological conditions and reliable, 
repeatable, and quantitative science-based methods to measure benefits 
and outcomes and inform adaptive management. Others suggested use of 
key ecological attributes (KEAs) to measure outcomes. Some were 
concerned that there was no requirement for monitoring, while others 
supported standardized self-reporting. One commenter noted the 
monitoring requirement may conflict within the Policy itself (Appendix 
B, section C) with regard to the responsibility of the Service to 
monitor compliance.
    Response: The Service, being national in scope of operations, has 
written the proposed Policy in a manner that allows for further 
clarification on a regional scale. Regarding the request that a 
``standardized process'' or ``system'' be established, where such (a) 
system(s) would be of benefit, it would be more practicable to 
establish it at a regional or programmatic scale, and would be handled 
through step-down guidance. The principle articulated in paragraph (f) 
of section 4 specifically states: ``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.'' The principle 
articulated in paragraph (f) states ``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.'' Thus, where appropriate, a process using 
KEAs may be applied. Regarding requirements for monitoring, the Policy 
states the Service's final mitigation recommendations should 
communicate in writing ``c. effectiveness monitoring; d. additional 
adaptive management actions as may be indicated by monitoring results; 
and e. reporting requirements.'' Regarding the statement indicating the 
need or inability to ``require'' monitoring, this Policy serves as an 
overarching 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. The text in the 
Policy was modified to clarify its intent with regard to monitoring 
compliance. This includes Appendix B, which now clarifies Service 
responsibilities for applying the Policy when formulating our own 
proposed actions under the NEPA decisionmaking process, versus being 
used as guidance for providing mitigation recommendations when 
reviewing the proposed actions of other Federal agencies under NEPA.

V. Recommendations and Preferences

    Comment (88): One commenter was concerned that certain language in 
the Policy appeared to devalue proponent-responsible compensatory 
mitigation and cautioned against conflating preferences with standards. 
This commenter pointed to the Department of the Interior's Departmental 
Manual Chapter (600 DM 6) on Implementing Mitigation at the Landscape-
scale (October 23, 2015), that lists the high and equivalent standards 
to which all mechanisms for compensatory mitigation should be held in 
section 6.7. They noted preferences are not included in that list, so 
while the ideas of ``equivalent standards'' and a policy's 
``preferences'' are both principles, a preference is not an equivalent 
standard. They said each mitigation measure does not need to adhere to 
each preference, only to each equivalent standard. They suggested that 
the following statement be removed from section 5.6.3 of the Policy, as 
it seemingly asserts all mitigation measures must achieve the 
preferences: ``As outlined by DM 6.6 C, this means that compensatory 
mitigation measures will. . .implement and earn credits in advance of 
impacts . . . .''
    Response: We do not intend to devalue proponent-responsible 
mitigation, and we recognize it is a vital compensatory-mitigation 
mechanism, whether implemented by private project developers, agencies, 
or third-party mitigation implementers. We acknowledge flexibility is 
warranted in recommendations for the compensatory mitigation measures 
and mechanisms most likely to achieve the Policy's goal, and we 
established a preference for advance mitigation because it is the 
compensatory mitigation timing most likely to achieve that goal. We 
recognize either concurrent mitigation or mitigation occurring after 
impacts may be necessary in some cases, and may represent the best 
ecological outcome in others. The Policy does not establish an explicit 
preference for conservation or mitigation banks or other compensatory 
mitigation mechanisms. Conservation or mitigation banks do typically 
secure resource benefits before impacts occur, and may be more likely 
to satisfy this preference, but any other compensatory mitigation 
mechanism that does so is also consistent with the Service's 
preference. We agree with the

[[Page 83461]]

suggestion to remove reference of our preference for advance mitigation 
from the language that precedes the list of equivalent standards, 
located in the new section 5.6.3.1, Equivalent Standards, and have made 
that targeted edit to avoid further confusion between preferences and 
equivalent standards.
    Comment (89): One commenter asked for clarification of the 
following statement on advance compensatory mitigation within section 
5.7.1, Preferences: 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).
    Response: The sentence the commenter mentions addresses temporal 
loss. Temporal loss is the delay between the loss of resource functions 
caused by an impact and the replacement of resource functions at a 
compensatory mitigation site. Additional compensatory mitigation may be 
required to compensate for temporal loss. When the compensatory 
mitigation project is initiated prior to, or concurrent with, the 
impacts, additional compensation for temporal loss may not be 
necessary, unless the resource has a long development time. We have 
added an additional sentence to clarify the statement.
    Comment (90): One commenter said the Policy should use a priority 
and preference, similar to the Corps' and EPA's joint rule on 
Compensatory Mitigation for Losses of Aquatic Resources, 33 CFR parts 
325 and 332, and 40 CFR part 230 (EPA), 33 U.S.C. 1344. In that 
regulation, the agencies establish an explicit preference for 
mitigation banking, followed by in-lieu fee programs, and finally, 
proponent-responsible mitigation.
    Response: This Policy is an umbrella policy that integrates all of 
the Service's authorities for engaging in mitigation processes. One 
reason we have not pursued an outright preference for banks or other 
mechanisms is that our authorities to recommend mitigation extend 
beyond the current track record for banks, which is limited to aquatic 
habitats and listed species. Instead of following the regulatory model 
from the CWA practice of stating an explicit, hierarchical preference 
that begins with banks, we establish a preference for advanced 
mitigation. While conservation or mitigation banks do typically secure 
resource benefits before impacts occur, and may be more likely to 
satisfy this preference, any compensatory mitigation mechanism that 
secures resource benefits before impacts occur may also be consistent 
with the Service's preference.
    We expect additional detail regarding compensatory mitigation 
mechanisms will be included in future step-down policies that are 
specific to compensatory mitigation. In this Policy, we use terminology 
that supports and accommodates future Service policies rather than pre-
determines their content. For example, we do not yet know what 
compensatory mitigation mechanisms will be preferred in future Bald and 
Golden Eagle Protection Act regulations, so it would be inappropriate 
to state firm preferences here.
    Comment (91): One commenter suggested we revise section 5.7, 
Recommendations, to indicate that compensatory mitigation should 
encourage more sustainable contributions of the goods and services 
provided to the public. This commenter said mitigation can have larger 
public benefits and services and that the Service should encourage 
mitigation actions that have additional natural, cultural, historical, 
or recreational values and benefits.
    Response: We agree mitigation actions can provide the benefits the 
commenter describes. In section 5.1, we describe our support of the 
development of mitigation plans that identify high-priority resources 
prior to specific proposed actions. The most effective early mitigation 
planning is integrated with conservation planning and planning for 
human infrastructure, including transportation; water and energy 
development; as well as working lands, recreation, and cultural values. 
Although such integration is not a requirement of a process under any 
particular mitigation authority, the Service recognizes the potential 
power of plans that simultaneously addresses multiple ecological and 
human needs from broad stakeholder perspectives.

W. Advance Mitigation

    Comment (92): Several commenters addressed the Policy's inclusion 
of a preference for advance mitigation. Several said they strongly 
endorsed statements throughout the Policy that recognize the value of 
compensatory mitigation completed in advance of impacts. Others said 
the preference should be removed or altered, but their reasoning 
differed. Some opposed a categorical requirement that mitigation be 
implemented prior to impacts, while others suggested the Policy go 
further than a preference and make advance mitigation a requirement. 
Some commenters said a preference was appropriate, but suggested the 
Policy use consistent language in referring to a preference.
    Response: Section 5.7.1 describes a preference for advance 
mitigation. It is not a requirement. As policy, we prefer that 
compensatory mitigation be implemented before the impacts of an action 
occur, making affected resources less vulnerable to temporal impacts 
and a net loss. Advance mitigation reduces risk and uncertainty. 
Demonstrating that mitigation is successfully implemented in advance of 
impacts provides ecological and regulatory certainty that is rarely 
matched by a proposal of mitigation to be accomplished concurrent with, 
or following, the impacts of an action. Most of the Service's 
mitigation authorities provide the ability to specify mitigation 
recommendations rather than requirements, and the Service would not be 
able to create a requirement for advance mitigation through policy. 
Accordingly, when providing mitigation recommendations to another 
action agency for consideration in their permitting or project 
decision, this Policy's guidance to Service staff is that they indicate 
their preference for advance mitigation. We have made minor edits to 
more consistently refer to this preference.
    Comment (93): Several commenters said the Policy's preference for 
advance mitigation is incompatible with project-planning realities, is 
not feasible or appropriate for some projects, and is not always 
possible. They suggested we revise the Policy to allow mitigation to 
occur concurrent with, and in some circumstances following, impacts to 
be consistent with the Corps' mitigation framework. Some commenters 
suggested simultaneous construction of the project and mitigation 
remain an option.
    Other commenters expressed the need for flexibility regarding the 
preference for conservation reasons. One commenter said overemphasizing 
the timing of mitigation could limit the Policy's goal of net 
conservation gain. They suggested the Policy de[hyphen]emphasize 
mitigation timing in favor of tailored mitigation that addresses the 
needs of unique species and habitats. They were also concerned that a 
preference for advance mitigation would give priority to 
for[hyphen]profit conservation/mitigation banks, and may not adequately 
tailor mitigation for the impacted resources. Another commenter noted 
that some initial flexibility may be necessary as new mitigation 
programs are created at the State and local levels.
    Response: Because advance mitigation is the Service's preference 
and not a requirement, the Policy is compatible with circumstances 
where

[[Page 83462]]

compensatory mitigation is concurrent with or after project impacts. It 
is our preference that compensatory mitigation be implemented prior to 
project impacts, but we recognize that authorities and project planning 
circumstances might prevent implementation of advance mitigation in 
some cases. While concurrent mitigation is an option when circumstances 
allow, proponents may expect advance mitigation to remain the Service's 
preference in most cases.
    We agree that flexibility is necessary in recommendations for 
compensatory mitigation measures and mechanisms that are most likely to 
successfully secure resources. Advance mitigation is the Service's 
preference, as it is the compensatory mitigation timing that is most 
likely to achieve success in regard to procuring funding. We recognize 
that concurrent mitigation or mitigation occurring after impacts may be 
necessary in some cases or may represent the best ecological outcome in 
others. The Policy does not establish an explicit preference for 
conservation or mitigation banking or other compensatory mitigation 
mechanisms. Conservation or mitigation banking typically secures 
resources before impacts occur, but any compensatory mitigation 
mechanism that does so may also be considered consistent with the 
Service's preference.
    Comment (94): One commenter wrote that it is possible for in-lieu 
fee programs to implement advanced mitigation, although they have not 
done so historically. This commenter also said a preference for 
advanced mitigation applied to in-lieu fee programs would increase 
their likelihood of success.
    Response: The Policy's preference for advance mitigation applies to 
all compensatory mitigation mechanisms. Although conservation or 
mitigation banking secures resources before impacts occur, any 
compensatory mitigation mechanism implemented before impacts occur may 
also satisfy this preference. In-lieu fee programs can implement a 
``jump-start'' that establishes and maintains a supply of credits that 
offer mitigation in advance of impacts.

X. Public and Private Lands

    Comment (95): Several commenters focused on the way the Policy 
addresses siting of compensatory mitigation relative to land ownership 
status in section 5.7.2, Recommendations for Locating Mitigation on 
Public or Private Lands. Several expressed support for the Policy's 
statement that mitigation will generally be required on lands with the 
same ownership classification as those where impacts occur. Some 
commenters believe the Policy should establish even stronger controls 
on public land mitigation, saying that impacts on private lands should 
not be mitigated on public lands. These commenters reasoned that 
mitigation on public lands has limited value and should not be allowed. 
One commenter said the Policy should recognize that when any 
compensatory mitigation is sited on Federal lands, unless a full-cost 
compensation is made for the fair market value (at a minimum) of the 
land utilized, then the public is subsidizing the development that 
caused the resource impacts. One commenter said no policy should create 
unfair competition with private industry, or create a disincentive to 
private investment in compensatory mitigation. They felt this could 
occur if there were no restrictions on siting compensatory mitigation 
for private-land impacts on public land locations. One commenter noted 
that some land managers would like to use compensatory mitigation funds 
to resolve preexisting problems on public lands, usually unrelated to 
the action and resources under active analysis. The commenter said this 
view is understandable but contrary to the mitigation hierarchy.
    Several commenters suggested fewer barriers or checks on mitigating 
private-land impacts on public lands, and the removal of the statement 
that compensatory mitigation should generally occur on lands with the 
same ownership classification as at the location of impacts. These 
commenters said requiring mitigation on lands with the same ownership 
classification is unnecessarily restrictive, adding that, when 
implemented, the standards for compensatory mitigation will force a 
positive result regardless of land ownership. One commenter said public 
land managers do not and will not have the funding necessary to 
stabilize and recover some resources, and it is, therefore, imperative 
that private conservation investments, including mitigation for adverse 
activities, be applied on public lands if it will provide maximum 
conservation benefit for the affected resource.
    Response: Compensatory mitigation can occur on public lands, and in 
some cases, such siting may lead to the best ecological outcome. 
Compensatory mitigation for impacts on public lands can be sited on 
both public and private lands. Also, compensatory mitigation for 
impacts on private lands can be located on public lands, but it is that 
combination, or that particular change in ownership classification, 
where Service staff should be attentive to additional considerations 
before confidently making such a recommendation. Section 5.7.2 
describes factors Service staff should consider. This cautious approach 
is warranted within the Policy's instruction to Service staff, for the 
reasons described below.
    We recognize that funds to properly manage or restore public lands 
are often insufficiently available today, absent infusion of mitigation 
dollars. This argument may have merit in some cases, but we remain 
concerned about consequences. It is possible that funding availability 
is reduced and opportunities to restore or protect at-risk habitats on 
private lands are precluded when compensatory mitigation is sited on 
public lands. If passed, those opportunities on private lands are often 
permanently gone. Given the irregular footprint of public lands across 
much of the United States, we are also concerned about strategic 
conservation of wildlife if the aggregation of mitigation onto public 
lands is further streamlined without articulating at least some test or 
application of criteria prior to making such recommendations. If we 
remove all checks on locating compensatory mitigation for private land 
impacts on public lands, we may risk making the ``export'' of habitats 
from private to public lands a routine practice, as it may often be the 
lower cost option. This outcome would counter the Service's intent that 
the Policy be applied using a landscape-level approach.
    We agree with the commenters who said there is potential for the 
public to subsidize the development that causes resource impacts if 
access to public lands for compensatory mitigation is streamlined to an 
inappropriate extent. This could potentially facilitate impacts or de-
incentivize avoidance on private lands by artificially reducing the 
costs of compensatory mitigation for project proponents.
    We are also concerned about the unintended consequence of reducing 
private conservation investment. Streamlined access to public lands for 
proponents needing to provide mitigation for impacts on private lands 
could undermine private conservation investment and banking 
opportunities, or weaken the economic conditions necessary for bank 
establishment by artificially reducing proponents' mitigation costs 
(e.g., land acquisition costs might not be fully incorporated).
    Comment (96): Several commenters discussed conditions or means for 
ensuring compensatory mitigation on public lands is durable and held to 
the

[[Page 83463]]

same standards as when conducted on private lands.
    One commenter said the Policy should require the public land agency 
include the compensatory mitigation requirements as specific conditions 
in the special use permit or other required authorizations. This 
commenter also said a long-term management plan should be included in 
the use authorization, permit, or other legally binding document. They 
said that in order to ensure long-term management plans are binding, 
they should be established through a contractual agreement between the 
public land management agency and a third party with a conservation 
mission.
    One commenter said compensatory mitigation on Federal lands for 
impacts on private lands must include full-cost compensation for the 
use of public lands, either through monetary compensation or 
implementation of additional projects to further the purposes of the 
Federal lands.
    One commenter said land managers must demonstrate that actions 
taken in already-protected areas meet mitigation objectives and are not 
used solely for the benefit of existing protected area management 
goals. They added that when compensatory mitigation is sited within 
protected areas, land managers must uphold accountability by 
maintaining a ledger of mitigation actions undertaken and completed in 
addition to existing conservation obligations.
    One commenter said the Policy, at minimum, should give preference 
to private lands with high conservation potential yet currently lacking 
conservation assurances (i.e., legal and financial assurances in place 
to achieve protection in perpetuity) before considering the use of 
public lands for mitigation.
    Two commenters said the Policy should require public land managers 
commit to long-term protection and management, and that they implement 
and fully fund alternative compensatory mitigation in the event of a 
change in law that allows incompatible uses to occur on mitigation 
lands. They said this would provide better certainty to project 
proponents when mitigating on public lands.
    Response: We agree that the identification of mechanisms for 
ensuring the durability and additionality of compensatory mitigation on 
public lands is both important and challenging. As an umbrella policy, 
this Policy integrates all of the Service's authorities for engaging in 
all aspects of mitigation, and is not specifically a compensatory 
mitigation policy. It is beyond the scope of the Policy to provide 
detailed procedural information for all compensatory mitigation 
scenarios. Also, as many of our mitigation authorities are advisory, it 
would be inappropriate to present detailed compensatory mitigation 
procedures in this Policy for such advisory authorities, when that 
information may already be presented in the existing regulations or 
guidance of other agencies. We agree that compensatory mitigation on 
Federal lands for impacts occurring on private lands must incorporate 
accounting for the difference between the cost of using public lands 
compared to private lands. Otherwise, agencies will not be able to 
maintain a level playing field for both public and private lands and 
for all types of compensatory mitigation mechanisms. Detailed 
specification of measures to ensure such accounting is beyond the scope 
of this Policy.
    Public lands that are proposed for siting compensatory mitigation 
may include Federal, State, county, and municipal lands. The existence 
and nature of mechanisms to ensure durability and additionality varies 
widely across land management agencies. Given this variation, it is 
prudent for this Policy to provide general guidelines for Service staff 
to examine before recommending mitigation of private land impacts on 
public lands. As described in section 5.7.2, these include 
additionality, durability, legal consistency, and whether the proposal 
would lead to the best possible conservation outcome.
    Comment (97): One commenter addressed 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). 
They said siting compensatory mitigation for impacts permitted under 
the CWA on National Wildlife Refuge System lands is not appropriate and 
that those lands were not established for fulfilling private wetland 
impact mitigation requirements. They added that the Service must 
fulfill its responsibility for fully functioning Federal lands and 
should in no instances lower its standards when contemplating 
compensatory mitigation; to do otherwise would subsidize private 
mitigation. This commenter was concerned that section 5.7.2 undermined 
the 1999 Policy.
    Response: We appreciate the commenter's observations and share 
their concerns regarding compensatory wetland mitigation on National 
Wildlife Refuge System lands. Those concerns led to, and were addressed 
by the 1999 Policy. Section 5.7.2 does not undermine the 1999 Policy. 
Regardless of the content of section 5.7.2, when the public land 
proposed for siting compensatory mitigation for permitted impacts under 
the CWA is a National Wildlife Refuge, that proposal is specifically 
covered by, and must comply with, the 1999 Policy. Our revisions of the 
1981 Policy do not modify or supersede the 1999 Policy.

Y. Implementation

    Comment (98): One commenter recommended an economic analysis 
because they believed there would be additional burdens and cost of 
implementing the Policy.
    Response: We understand that confusion regarding whether the 
Service's comments are requirements or merely recommendations may have 
led some to believe the scope of the Policy has been substantially 
expanded. The burdens and costs associated with this Policy will remain 
largely the same as under the 1981 Policy and under existing agency 
practice.
    Comment (99): Commenters requested the Service articulate a clear 
timeline in which the Policy will be implemented across the agency. A 
2-year timeline was recommended, as it would allow enough time to 
sufficiently (a) adopt the Policy, (b) train and educate staff, and (c) 
apply the Policy in the field. Others questioned the undue burden to 
staff and availability of funding to implement the Policy. Similarly, 
commenters requested information on how the Service plans to implement 
the Policy, given staffing and budget constraints.
    Response: The Service, being national in scope of operations, has 
written the proposed Policy in a manner that allows for further 
clarification on a regional scale. Regarding the request that a 
``standardized process'' or ``system'' be established, where such a 
system(s) would be of benefit, it would be more practicable to 
establish it at a regional or programmatic scale, and would be handled 
through step-down guidance. During development of such guidance, the 
Service will facilitate discussions and training with staff to ensure 
consistency and reduce workload.
    Comment (100): Many expressed concern with how the Policy may be 
inconsistent or conflict with regulations or policies from States, and 
other Federal agencies responding to the Presidential Memorandum on 
Mitigation (National Marine Fisheries Service, Corps, National 
Atmospheric and Oceanic Administration, Federal Energy Regulatory 
Commission, etc.), given the need to promulgate joint regulations. Some 
urged the Service to

[[Page 83464]]

coordinate this Policy internally, particularly with policies 
promulgated under the Endangered Species Act and CERCLA, OPA, and the 
CWA during natural resource damage assessment. One commenter requested 
clarity where more than one statute applies, others suggested the 
Service provide training internally and externally to other agencies, 
and some recommended examples and templates be constructed.
    Response: The Policy is consistent with the Presidential Memorandum 
on Mitigation. The guidance development referenced in the Presidential 
Memorandum on Mitigation is under consideration within the Department 
of Interior at the time this Policy is being finalized and the Service 
will continue to seek consistency in future guidance. We have made 
edits to Appendix A to clarify the relationship of this Policy with 
natural resource damage assessment and the Presidential Memorandum on 
Mitigation.
    Comment (101): One commenter questioned the use of ``reasonably 
foreseeable,'' requesting clarification of what impacts would be 
considered such and what criteria would be applied to make that 
determination.
    Response: The Service will implement use of the phrase ``reasonably 
foreseeable,'' similar to that used in NEPA. Under this scenario, 
actions that are likely to occur or are probable, rather than those 
that are merely possible, would be considered reasonably foreseeable. 
See CEQ guidance at 46 FR 18026 (March 23, 1981).
    Comment (102): Several commenters were concerned that the Policy 
lacks clear mitigation protocol, resulting in moving targets for land 
users interested in developing and executing projects in good faith. 
Some commenters stated that the Policy will substantially increase 
uncertainty, without providing additional environmental benefits, 
especially given the broad range of regulatory protections already in 
place.
    Response: The Service, being national in scope of operations, has 
written the proposed Policy in a manner that allows for further 
clarification on a regional scale. Thus, site differences could be 
considered during impact evaluation, for example, circumstances such as 
differences in productivity of habitat prior to the project, expected 
duration and severity of impact, or other local conditions. A less 
flexible policy could cause rigid adherence to a protocol, which may be 
more suitable in one region than another.
    Comment (103): One commenter suggested the Service did not comply 
with procedural requirements to finalize the Policy, in particular the 
Administrative Procedure Act (APA) and the Regulatory Flexibility Act 
(RFA).
    Response: The Service complied with all necessary regulatory 
requirements in publishing the final Policy. The Policy does not 
require compliance with the APA or the RFA because it is not 
regulatory. The Policy simply revises and replaces the 1981 Policy that 
guided the Service's mitigation recommendations for 35 years. This 
Policy is advisory in nature and outlines the Service's recommended 
approach to addressing accelerating loss of habitats, effects of 
climate change, and a strategic approach to conservation at appropriate 
landscape scales. It addresses all resources for which the Service has 
legal authorities to recommend mitigation for impacts to resources and 
provides an updated framework for mitigation measures that will 
maximize their effectiveness at multiple geographic scales.
    Comment (104): Several commenters suggested we allow the public to 
comment on a complete portfolio of policies, handbooks, and guidance 
documents that implement the Policy at one time.
    Response: Many of the Service's guidance products are completed, 
while others are either in development or have yet to be drafted, 
making it logistically impossible to complete such a filing. This 
Policy is intended to be an umbrella policy under which more detailed 
policies or guidance documents covering specific activities may be 
developed in the future.

Z. Editorial and Organizational Comments

    Comment (105): Many commenters provided specific technical, 
editorial, and organizational suggestions or corrections, including 
suggestions for new or modified definitions.
    Response: We have addressed technical, editorial, and 
organizational suggestions and corrections as appropriate throughout 
the document.
    Comment (106): Many commenters questioned the specifics of multiple 
definitions, requested clarification or refinement, or mentioned the 
need for additional or narrowed definitions (e.g., baseline, 
additionality, equivalent standards, preferences and credits, emerging 
mechanisms, conservation objective, net conservation gain, impacts or 
effects, landscape, ecologically relevant scales, broad ecological 
functions, ecologically functioning landscapes).
    Response: With regard to refining the definitions, the Service is 
consistent with the Departmental Manual and Presidential Memorandum. As 
with many of the decisions made during analyses of impacts, definitions 
of many terms may take on the nuances of the project and/or authority 
under which the mitigation is being discussed. We have preserved the 
flexibility and look forward to using existing means of engagement at 
the local and State level, when working with the States, tribes, and 
other partners through existing authorities while developing programs 
and additional guidance to seek mutual goals and avoid inconsistency, 
including newly emerging mechanisms for analyses, mitigation, and 
monitoring.
    Comment (107): One commenter was concerned the definition of 
``compensatory mitigation'' insinuates there will always be ``remaining 
unavoidable impacts'' that must be compensated, and suggests revisions. 
The same commenter states that the definition of mitigation hierarchy 
should include where departure from the sequential approach may achieve 
a better conservation income.
    Response: If there are no residual impacts after ``all appropriate 
and practicable avoidance and minimization measures have been 
applied,'' no compensatory mitigation would be required. Departure from 
the mitigation hierarchy is detailed in section 5.5, where we describe 
how relative emphasis will be given to mitigation types within the 
mitigation hierarchy depending on the landscape context and action-
specific circumstances that influence the effectiveness of available 
mitigation. No change was made to these definitions.

AA. Appendix C. Compensatory Mitigation in Financial Assistance Awards 
Approved or Administered by the U.S. Fish and Wildlife Service

    Comment (108): Five commenters suggested or requested 
clarifications regarding Appendix C, which addresses the limited role 
that specific types of mitigation can play in financial assistance 
programs. Two commenters said they supported limiting the use of public 
conservation funds to meet regulatory mitigation requirements, as the 
use of such funding to also generate credits undermines the 
effectiveness of both conservation and mitigation programs. They said 
that funding from any public entity that is specifically dedicated to 
conservation should not be used to generate credits, and suggested 
those funds be used to achieve baseline conditions. They suggested the 
Policy clarify that public conservation funds can be used to meet 
baseline.

[[Page 83465]]

    Response: The commenters propose that, if funds from a public 
entity are specifically dedicated to conservation, they could be used 
to achieve baseline conditions, which they define as ``the level of 
resource function above which mitigation credits may be sold.'' 
However, even if baseline were defined as recommended, the achievement 
of baseline would still be an essential part of the process leading to 
the generation of mitigation credits.
    This Policy prohibits the use of the Federal share or the required 
minimum match of a financial assistance project to satisfy Federal 
mitigation requirements, except in exceptional situations described in 
the Policy. This prohibition is consistent with the basic principles of 
the regulations implementing the compensatory mitigation requirements 
of the CWA, which is the authority for most funds spent on mitigation. 
The regulations were published in the Federal Register on April 10, 
2008 (73 FR 19594), by: (a) The Department of Defense, resulting in 
regulations at 33 CFR parts 325 and 332; and (b) the EPA, resulting in 
regulations at 40 CFR part 230. Sections 332.3(j)(2) and 230.93(j)(2) 
state that, except for projects undertaken by Federal agencies, or 
where Federal funding is specifically authorized to provide 
compensatory mitigation, federally funded aquatic resource restoration 
or conservation projects undertaken for purposes other than 
compensatory mitigation, such as the Wetlands Reserve Program, 
Conservation Reserve Program, and Partners for Wildlife Program 
activities, cannot be used for the purpose of generating compensatory 
mitigation credits for activities authorized by [Department of the 
Army] permits. However, compensatory mitigation credits may be 
generated by activities undertaken in conjunction with, but 
supplemental to, such programs in order to maximize the overall 
ecological benefits of the restoration or conservation project. 
[Emphasis added.]
    The preamble of the final rule for these regulations clarifies the 
intent of Sec. Sec.  230.93(j)(2) and 332.3(j)(2) by stating that, for 
example, if a Federal program has a 50 percent landowner match 
requirement, neither the federally funded portion of the project, nor 
the landowner's 50 percent match, which is part of the requirements for 
obtaining Federal funding, may be used for compensatory mitigation 
credits. However, if the landowner provides a greater than 50 percent 
match, any improvements provided by the landowner over and above those 
required for Federal funding could be used as compensatory mitigation 
credits.
    The Policy acknowledges these regulations for mitigation required 
by the CWA (Dept. of the Army permits). It also adopts the underlying 
principles of these regulations as the foundation of the Policy for 
mitigation required by authorities other than the CWA. Restricting the 
role of financial assistance funds for mitigation purposes is a 
reasonable requirement to avoid the equivalent of a Federal subsidy to 
those who are legally obligated to compensate for the environmental 
impacts of their proposed projects.
    Comment (109): Two commenters said limiting the use of funds 
counted as matching funds toward Federal grants as mitigation is 
inconsistent with several existing State and Federal policy statements. 
They noted that in 2008, seven agencies including the Service, other 
Federal agencies, and several Oregon State agencies issued joint 
recommendations limiting the use of public conservation dollars to 
generate credits for mitigation. The recommendations state, ``The 
agencies believe that funds from programs identified as Public Resource 
Protection and Restoration Programs should not be used to finance 
mitigation projects undertaken to satisfy regulatory requirements. To 
do so would be inconsistent with the mandated and/or intended purposes 
and limitations of these programs.'' The recommendations further state 
``. . . multisource funded projects should include accounting that is 
detailed and transparent enough to accurately measure the relative 
habitat and conservation values derived through each funding source.'' 
They also stated that Metropolitan Regional Governments and other 
sources of public conservation funds have consistently limited the use 
of pubic conservation funds to support mitigation, but allow mitigation 
funds to be used as match.
    Response: The Policy allows matching funds to be used to generate 
credits only if: (a) The match used for the credits is over and above 
the required minimum; (b) funding for the award has been statutorily 
authorized and/or appropriated for use as compensatory mitigation for 
specific projects or categories of projects; or (c) the project funded 
by the Federal financial assistance award requires mitigation as a 
condition of a permit. These restrictions are based on the premise that 
neither Federal funds nor any required contribution for obtaining 
Federal funds should subsidize those who are legally obligated to 
compensate for the environmental impacts of the projects they propose. 
This was an underlying principle in the regulations that implement the 
compensatory mitigation requirements of the CWA, which is the authority 
for most funds spent on compensatory mitigation.
    The regulations on compensatory mitigation under the CWA were 
published jointly in the Federal Register on April 10, 2008 (73 FR 
19594), by: (a) The Department of Defense, resulting in regulations at 
33 CFR parts 325 and 332; and (b) the Environmental Protection Agency, 
resulting in regulations at 40 CFR part 230. For excerpts from these 
regulations that are relevant to this comment, please see our response 
to comment #108 above.
    Consistent with the DOD and EPA regulations, the Appendix C, 
section (C)(1)(a) of the Policy allows the match in a Federal 
financially assisted project to be used to generate mitigation credits 
if: 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.
    Comment (110): Five commenters said they want to encourage 
collective action to achieve conservation outcomes, and leveraging 
multiple funding sources will lead to bigger projects with greater 
environmental benefits. They said the Policy seems to support a 
scenario where the EPA could fund $1 million of a project, a city could 
fund $2 million, but the city could not take any mitigation credits if 
it claimed those funds as match for the Federal grant. The commenters 
said this scenario could limit opportunities to create greater 
conservation or environmental benefit at a landscape scale.
    Response: Under the commenters' scenario, if a city provided match 
above the required minimum, the Policy would not present a barrier for 
this ``surplus'' match to generate mitigation credits as long as the 
program's establishing authority(ies) or regulations do not prohibit 
it. However, if a program requires a minimum match, that required 
minimum has effectively already been dedicated to conservation by the 
rules of the program. In those programs where a minimum match is 
required, the Federal funds and the minimum match are essential 
components of the financial assistance. The award would not be possible 
without that minimum match, so the Policy does not allow either of 
these

[[Page 83466]]

essential components to generate mitigation credits.
    This was a basic principle in the regulations that implement the 
compensatory mitigation requirements of the CWA, which is the authority 
for most funds spent on compensatory mitigation. The Service's revised 
Policy is based on the same principle. If we were to allow the match 
required as a prerequisite for an award to generate mitigation credits, 
it would effectively subsidize those who are legally obligated to 
compensate for the environmental impacts of their proposed projects.
    Comment (111): Two commenters suggested the following text to 
reflect the importance of leveraging multiple funding sources in 
achieving landscape-scale outcomes: Public conservation funds cannot be 
used to meet regulatory compliance obligations. Where multiple sources 
of funding are used in conjunction with credit-generating activities, 
it is the permittee's responsibility to demonstrate compliance with 
this requirement. Public conservation funds can be used to meet 
baseline conditions.
    Response: The Policy authorizes the use of specific funding sources 
that are, or could be interpreted as ``public conservation funds.'' The 
references to such funding in the Policy are:
    (a) Federal funding statutorily authorized and/or appropriated for 
use as compensatory mitigation for specific projects or categories of 
projects (Appendix C, section E(1)(b)).
    (b) Federal funds needed to mitigate environmental damage caused by 
a federally funded project (Appendix C, section E(1)(c)).
    (c) Revenue from a Natural Resource Damage Assessment and 
Restoration Fund settlement as long as the financial assistance program 
does not prohibit its use (Appendix C, section F).
    The Policy also affirms that States, tribes, and local governments 
are free to use Federal financial assistance (i.e., public conservation 
funds) to satisfy the mitigation requirements of State laws or 
regulations as long as that use is not contrary to any law, regulation, 
or policy of the State, tribal, or local government (Appendix C, 
section G(2)).
    We did not accept the commenter's recommended language because it 
could lead to incorrect interpretations of the Policy.
    The commenter also recommended ``public conservation funds'' be 
used to meet baseline conditions under the commenter's definition of 
``baseline.'' We addressed this issue in a previous response.
    Comment (112): One commenter said it is not workable to prohibit a 
site that has received Federal funds to generate credits. They 
suggested the Policy encourage the pooling of resources and the 
investment of mitigation dollars in the most valuable sites regardless 
of whether Federal funds have been invested on the site, especially for 
those uses not directly related to restoring greater sage-grouse 
habitat. The commenter said they believe thoughtful discussions and 
pertinent accounting will ensure Federal funds are not used to generate 
credits to offset the impacts of the private sector or create a 
conflict with the rules of additionality.
    Response: The authority for most funds spent on mitigation is the 
CWA. The regulations that implement the CWA's compensatory mitigation 
requirements were published jointly in the Federal Register on April 
10, 2008 (73 FR 19594), by: (a) The Department of Defense, resulting in 
regulations at 33 CFR parts 325 and 332; and (b) the Environmental 
Protection Agency, resulting in regulations at 40 CFR part 230. 
Sections 332.3(a)(3) and 230.93(a)(3) indicate that compensatory 
mitigation projects may be sited on public or private lands. Credits 
for compensatory mitigation projects on public land must be based 
solely on aquatic resource functions provided by the compensatory 
mitigation project, over and above those provided by public programs 
already in place. [Emphasis added.]
    Sections 332.3(j)(2) and 230.93(j)(2) of 40 CFR part 230 state 
that, except for projects undertaken by Federal agencies, or where 
Federal funding is specifically authorized to provide compensatory 
mitigation, federally funded aquatic resource restoration or 
conservation projects undertaken for purposes other than compensatory 
mitigation, such as the Wetlands Reserve Program, Conservation Reserve 
Program, and Partners for Wildlife Program activities, cannot be used 
for the purpose of generating compensatory mitigation credits for 
activities authorized by [Department of the Army] permits. However, 
compensatory mitigation credits may be generated by activities 
undertaken in conjunction with, but supplemental to, such programs in 
order to maximize the overall ecological benefits of the restoration or 
conservation project. [Emphasis added.]
    The CWA may have a limited effect on the habitat of the greater 
sage-grouse, but the underlying principles of its regulations are 
reasonable and appropriate for applicability to other statutory 
authorities for mitigation. Limiting any credits from projects on 
public lands to those based on resource functions provided over and 
above those already in place, avoids a government subsidy to those 
already legally obligated to compensate for impacts of their projects. 
The Policy adopts the basic principles of the CWA's compensatory 
mitigation regulations as the foundation for all sources of 
compensatory mitigation.
    Comment (113): One commenter noted Appendix C includes information 
on the use of Service funds relative to the need to obtain permits from 
the Corps' regulatory program. To avoid confusing these requirements 
with the Corps' Civil Works requirements, they suggested adding a 
statement that Appendix C does not affect policies on cost-sharing or 
non-Federal contributions for the Corps' Civil Works Program.
    Response: The Policy directly affects only those Federal financial 
assistance programs and awards in which the Service has the authority 
to approve or disapprove applications. It also affects real property or 
equipment either acquired or improved with a Service-administered 
financial assistance award where the recipient must continue to manage 
the real property or equipment for its originally authorized purpose as 
long as it is needed for that purpose. The Policy has no effect on 
other Federal agencies' policies on match or cost share as long as 
those policies do not affect: (a) Restrictions in this Policy on the 
use of Service-administered financial assistance awards for generating 
compensatory mitigation credits, and (b) the Service's responsibilities 
as identified in Federal statutes or their implementing regulations. 
The Policy does not take precedence over the requirements of any 
Federal statute or regulation, whether that statute or regulation 
applies to a Service program or a program of another Federal agency. We 
added a new section I to Appendix C to clarify these issues.
    Comment (114): One commenter said the Service's proposed revised 
Policy is inconsistent on in-lieu fee mitigation in the context of 
financial assistance programs. They sought further explanation of the 
rationale of allowing Federal funds to satisfy mitigation requirements 
of State, tribal, or local governments.
    Response: The revised Policy prohibits the use of proceeds from the 
purchase of credits in an in-lieu fee program 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

[[Page 83467]]

funds and the required minimum match to maximize the overall ecological 
benefits of the project.
    (b) The statutory authority(ies) for the financial-assistance 
program and program-specific regulations (if any) do not prohibit the 
use of match or program funds for mitigation.
    This prohibition is consistent with the underlying principles of 
the regulations implementing the compensatory mitigation requirements 
of the CWA, which is the authority for most funds spent on mitigation. 
Please see relevant excerpts from the regulations published jointly by 
The Department of Defense and the EPA within our response to comment 
#108 above.
    The Service's revised Policy defers to these regulations for 
mitigation required by the CWA (Dept. of the Army permits). It also 
adopts the underlying principles of these regulations as the foundation 
for mitigation required by authorities other than the CWA. Restricting 
the ability of financial assistance programs to generate compensatory 
mitigation credits is a reasonable requirement to avoid the equivalent 
of a Federal subsidy to those who are legally obligated to compensate 
for the environmental impacts of their proposed projects.
    The rationale of allowing the use of Federal funds to satisfy 
mitigation requirements of State, tribal, or local governments is based 
on 33 CFR 332.3(j)(1) and 40 CFR 230.93(j)(1), which have the force and 
effect of law only for the compensatory mitigation requirements of the 
CWA. However, the basic approach of these regulations is reasonable and 
appropriate for use as the foundation of a Service policy on mitigation 
in the context of financial assistance when the authority for 
mitigation is in a statute other than the CWA.
    The regulations at 33 CFR 332.3(j)(1) and 40 CFR 230.93(j)(1) read:
    (j) Relationship to other Federal, State, tribal, and local 
programs. (1) Compensatory mitigation projects for DA [Department of 
the Army] permits may also be used to satisfy the environmental 
requirements of other programs, such as State, tribal, or local 
wetlands regulatory programs, other Federal programs such as the 
Surface Mining Control and Reclamation Act, Corps civil works projects, 
and Department of Defense military construction projects, consistent 
with the terms and requirements of these programs and subject to the 
following considerations: (i) The compensatory mitigation project must 
include appropriate compensation required by the DA permit for 
unavoidable impacts to aquatic resources authorized by that permit. 
(ii) Under no circumstances may the same credits be used to provide 
mitigation for more than one permitted activity. However, where 
appropriate, compensatory mitigation projects including mitigation 
banks and in-lieu fee projects, may be designed to holistically address 
requirements under multiple programs and authorities for the same 
activity.
    The wording of Appendix C, section G may have led the commenter to 
incorrectly conclude that Service-administered financial assistance may 
be awarded explicitly for the purpose of satisfying the mitigation 
requirements of a State, tribal, or local government. We changed the 
wording of section G to avoid any misunderstanding on this issue.
    Comment (115): One commenter asked what, if any, impacts might be 
considered for administration of the Service's Wildlife and Sport Fish 
Restoration Program (WSFR) and State fish and wildlife agency 
obligations related to that program. They requested potential 
programmatic impacts be noted in the Policy, and the existing Joint 
Federal/State Task Force on Federal Assistance Policy (JTF) be engaged. 
This commenter appreciated the Policy's emphasis on collaboration and 
coordination, but suggested we also cite 43 CFR part 24, Department of 
the Interior Fish and Wildlife Policy: State-Federal Relationships. 
They also said the Service should consult with the States and other 
affected governments before selecting plans to guide mitigation, and 
that great deference should be given to State-prepared plans.
    Response: It is difficult to assess the impact of the Policy on 
WSFR because the Service has never had any comprehensive national 
policy on the role of mitigation in its financial assistance programs. 
The CWA is the authority for most funds spent on mitigation, and it is 
the only Federal statutory authority for mitigation that addresses 
mitigation in the context of financial assistance. The Policy does not 
(and cannot) change the CWA regulations on compensatory mitigation, 
which have been in effect since 2008. The Policy will give grants 
managers in the Service and in recipient agencies a better awareness 
and understanding of these regulations.
    In addition to the 2008 CWA regulations, an element of continuity 
in this Policy is its treatment of the Natural Resource Damage 
Assessment and Restoration Fund. This Policy incorporates the findings 
of a 1999 Solicitor's Opinion determining that revenue from this fund 
was eligible as match.
    As for the commenter's recommendation that we consult with the 
States and other affected governments before selecting plans to guide 
mitigation, on March 8, 2016, we published the proposed revised Policy 
in the Federal Register, and invited all interested parties to comment 
during a 60-day comment period. On May 12, 2016, we extended the 
comment period for an additional 30 days. We are pleased to have 
received the recommendations of the Association of Fish and Wildlife 
Agencies, which represents State fish and wildlife agencies.
    As for the comment that we engage the Joint Federal/State Task 
Force on Federal Assistance Policy on the potential impacts to the WSFR 
program, we welcome any JTF engagement on the implementation of 
Appendix C. We are also open to future input that: (a) Clearly improves 
implementation of Appendix C; (b) fully complies with existing statutes 
and regulations; (c) carries out the general policy and principles 
stated in section 4 of the Policy, with special attention to the goal 
of a net conservation gain; (d) maintains a consistent approach in 
satisfying the requirements of all statutory authorities for mitigation 
to the extent possible; (e) ensures additionality (see section 6) for 
any proposed change in locating compensatory mitigation on public or 
private lands already designated for the conservation of natural 
resources; and (f) does not subsidize those who are legally obligated 
to compensate for the environmental impacts of their proposed projects.
    Section G of Appendix C of the revised Policy may be of special 
interest to the Association of Fish and Wildlife Agencies, as it 
affirms the rights of States, tribes, and local governments to 
structure the mitigation requirements of their own laws and regulations 
however they choose. The Service's revised Policy does not affect 
mitigation required by State, tribal, or local law.
    We added the 43 CFR part 24 reference to Appendix A, section C per 
the comment.
    To address the comment that we give great deference to State-
prepared plans that guide mitigation, we will convert the existing 
section H in Appendix C to section I, and add the following to the new 
section H: When evaluating existing plans under sections H.2.a or b, 
the Service must defer to State and tribal plans to determine which 
additional benefits to count toward achieving the mitigation planning 
goal

[[Page 83468]]

as long as the plans are consistent with Federal law, regulation, and 
this Policy.
    Comment (116): One commenter noted that the way financial 
assistance programs addressed in Appendix A are described in section 
3.5 may become outdated. The number of financial assistance programs 
recently increased to 61. Instead of using a number that will change 
frequently, they suggested revising the first sentence to read:
    The Service has more than 60 financial assistance programs, which 
collectively disburse. . . .
    Response: We made the suggested revision.
    Comment (117): One commenter addressed the interaction between the 
Service's financial assistance programs described in Appendix C with 
section 4, General Policy and Principles. The commenter was concerned 
that the following concept in paragraph (g) would be applied 
inconsistently unless additional guidance was provided: ``The Service 
will recommend or require that compensatory mitigation be . . . 
additional to any existing or foreseeably expected conservation efforts 
planned for the future.'' The commenter said the following scenarios 
need clarification:
    (1) A master plan for a land-management unit has an objective that 
calls for a specific conservation action to be accomplished in the next 
15 years. If funding has not yet been appropriated or allocated to 
accomplish the conservation action, would the master-plan objective 
qualify as a ``foreseeably expected'' conservation effort planned for 
the future?
    (2) The establishing statutory authority of a land-management 
agency makes that agency responsible for specific management actions, 
but the agency does not have enough funds to carry out these management 
actions? Would those management actions for which the agency is 
statutorily responsible qualify as an ``existing or foreseeably 
expected'' conservation effort?
    (3) The partners in a grant-funded land-acquisition project have 
committed to use non-Federal and non-match funds to complete specific 
types of restoration or enhancement on the project area. These 
commitments contributed to the project being recommended for funding by 
the grant program's ranking panel. Would these commitments qualify as 
an ``existing or foreseeably expected'' conservation effort?
    Response: The regulations implementing the compensatory mitigation 
requirements of the CWA at 33 CFR 332.7(a) and 40 CFR 230.97(a) state 
that:
    Long-term protection may be provided through real estate 
instruments such as conservation easements held by entities such as 
Federal, State, tribal, or local resource agencies, nonprofit 
conservation organizations, or private land manager; the transfer of 
title to such entities; or by restrictive covenants. For government 
property, long-term protection may be provided through Federal facility 
management plans or integrated natural resources management plans.
    These regulations regard facility-management plans and integrated 
natural-resources management plans as providing long-term protection. 
We used this as part of the basis for clarifying what would qualify as 
``existing or foreseeably expected conservation efforts planned for the 
future.'' We addressed the issues and scenarios raised by the commenter 
in Appendix C, section H.
    Comment (118): One commenter addressed the interaction between the 
Service's financial assistance programs described in Appendix C and 
provisions of section 5.7.2, Recommendations for Locating Mitigation on 
Public or Private Lands. They asked for clarification on whether the 
following would be considered public land:
    (a) Real property owned by ``instrumentalities'' of government, 
such as a regional water management district?
    (b) An interest in real property that is less than full fee title, 
such as a conservation easement or a leasehold estate?
    (c) Real property owned by tribal governments?
    (d) Real property held by nongovernmental entities, but acquired 
with Federal financial assistance. In such cases, the Federal awarding 
agency does not have an ownership interest in the property, but it does 
have the following legal rights defined in regulation:
    (1) Approving encumbrances to the title,
    (2) Approving or giving instructions for disposition of real 
property no longer needed for its originally authorized purpose, and
    (3) Receiving a share of the proceeds resulting from disposition of 
real property when the Federal awarding agency authorizes sale on the 
open market or transfer to the grant recipient.
    Response: Examples (a), (b), and (c) would be public land for 
purposes of the Policy. However, if the government or public agency 
owns a fee with exceptions to title as in example (b), the Policy 
applies only to the interest owned by a government or public agency. It 
has no effect on interests not owned by a government or public agency. 
Example (d) would be considered public land only if the interest in 
real property is owned by the Federal Government; a State, tribal, or 
local government; or an agency or instrumentality of one of these 
governments. We have provided clarification in Appendix C, section H.
    Comment (119): One commenter said terms in section 5.7.2, 
Recommendations for Locating Mitigation on Public or Private Lands, had 
implications for the material in Appendix C and were unclear. 
Specifically, they asked for an explanation of the difference between 
the proposed language of this Policy in section 5.7.2: ``measures the 
public agency is foreseeably expected to implement absent the 
mitigation'' and the language of the regulations jointly issued by the 
EPA at 40 CFR 230.93(a)(3) and the Corps at 33 CFR 332.3(a)(3): 
``Credits for compensatory mitigation projects on public land must be 
based solely on aquatic resource functions provided by the compensatory 
mitigation project, over and above those provided by public programs 
already planned or in place.''
    Response: The language in section 5.7.2 and in the EPA/Corps 
regulation has different purposes, but both are applications of the 
principle of additionality, which this Policy defines as: 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.
    The measures described in section 5.7.2 are effectively those 
described in the regulatory language as: Those provided by public 
programs already planned.
    Appendix C, section H explains how to determine what qualifies as 
``baseline conditions . . . that a public land management agency is 
foreseeably expected to implement absent the mitigation.''
    Comment (120): One commenter addressed Appendix C, section H, Can a 
mitigation proposal be located on land acquired under a Federal 
financial assistance award? They said despite this section title, 
section 5.7.2, Recommendations for Locating Mitigation on Public or 
Private Lands, seems to apply to everything covered by the Policy, 
including financial assistance awards. They suggested that if section 
5.7.2 applies to financial

[[Page 83469]]

assistance awards, we clarify that Appendix C, section H supplements 
section 5.7.2.
    Response: Most lands acquired under Service-approved or 
administered financial assistance awards are dedicated to conservation, 
but not all are public land. We have revised section H to acknowledge 
the applicability of section 5.7.2 to land already designated for 
conservation.
    Comment (121): One commenter said the Authorities and Direction for 
Service Mitigation Recommendations listed in Appendix A needed 
additional references related to the financial assistance programs 
described in Appendix C. They suggested the following authorities for 
the two Service grant programs that have an authorizing statute or 
regulation prohibiting the use mitigation in the program be added to 
Appendix A:

North American Wetlands Conservation Act, 16 U.S.C. 4401 et seq.
National Coastal Wetlands Conservation Grants, 16 U.S.C. 3954, 50 CFR 
part 84.

    Response: We added the North American Wetlands Conservation Act, 16 
U.S.C. 4401 et seq. to Appendix A, section B, Additional Legislative 
Authorities. We added the National Coastal Wetlands Conservation 
Grants, 16 U.S.C. 3954, 50 CFR part 84 to Appendix A, section C, 
Implementing Regulations.
    Comment (122): One commenter addressed the ineligibility of the use 
of mitigation in the National Coastal Wetlands Conservation program. 
They suggested that inserting the following as the ninth sentence in 
the introductory paragraph would avoid any potential misunderstandings: 
Consistent with the Service's Mitigation Policy, the regulations at 50 
CFR part 84 authorize the use of Natural Resource Damage Assessment 
funds as match in the National Coastal Wetlands Conservation Program.
    Response: We added the sentence as recommended.
    Comment (123): For further clarity, one commenter recommended 
editing in Appendix C, section B, Where do most mitigation issues occur 
in financial assistance? Specifically, they suggested the first 
sentence in the answer to Question B be replaced with: Most mitigation 
issues in financial assistance relate to: (a) The proposed use of 
mitigation funds on land acquired with Federal financial assistance, 
and (b) the use as match of mitigation funds and in-kind contributions 
derived from mitigation funds.
    Response: We replaced the first sentence as recommended by the 
commenter.
    Comment (124): One commenter noted that in a recent mitigation 
project proposed for siting on land acquired with Federal financial 
assistance, the landowner asserted that the mitigation project should 
be acceptable to the Service because it was acceptable to the Corps. To 
address such implementation questions, the commenter suggested adding a 
new section that examines the responsibilities of the Corps and the 
Service for approving specific decisions related to the limited role of 
mitigation in financial assistance programs. They said, where 
appropriate, the new section would give the legal basis of their 
respective roles.
    Response: The District Engineer of the Corps has the authority to 
impose conditions on a Department of the Army (DA) permit under the 
CWA, including conditions on the type and location of compensatory 
mitigation. However, no mitigation project, whether it is under the 
authority of the CWA or any other Federal statute, can interfere with 
the purposes of a financially assisted project. If the conditions in a 
DA permit will affect a financially assisted project for which the 
Service is responsible, those conditions must be acceptable to the 
Service before the permitted activity is initiated.
    Even if a mitigation project under the CWA will not affect one of 
its financially assisted projects, the Service may be a member of the 
Interagency Review Team that reviews documentation for the 
establishment of mitigation banks and in-lieu fee programs. The 
respective roles of the Corps and the Service in carrying out the 
compensatory mitigation requirements of the CWA are described in more 
detail in 33 CFR parts 325 and 332, and 40 CFR part 230.
    For mitigation projects that will affect a financially assisted 
project in a program where it approves or administers awards, the 
Service is responsible for the following decisions:
    (a) Can real property and equipment acquired under a Service-
administered financial assistance award be used for purposes of 
compensatory mitigation?
    The Service makes this decision based on 2 CFR 200.311(b) and 2 CFR 
200.313(a-c), which addresses real property and equipment 
(respectively), with special reference to the Service's authority to 
approve encumbrances and its right to receive a share of proceeds from 
a disposition when property is no longer needed for the purposes of the 
original award. 50 CFR 80.132-135 also apply to real property acquired 
under the Wildlife Restoration program, Sport Fish Restoration program, 
and Enhanced Hunter Education and Safety programs, and will guide 
mitigation in financial assistance programs.
    (b) Can real property that includes a capital improvement funded by 
a Service-administered financial assistance award be used for purposes 
of compensatory mitigation during the useful life of the capital 
improvement?
    The Service makes this decision based on 2 CFR 200.311(b). 
Regulations at 50 CFR 80.132-135 may also be applicable to a capital 
improvement funded by an award from the Wildlife Restoration program, 
Sport Fish Restoration program, and Enhanced Hunter Education and 
Safety programs. ``Capital improvement'' means (a) a structure that 
costs at least $25,000 to build; or (b) the alteration, renovation, or 
repair of a structure that increases the structure's useful life by at 
least 10 years or its market value by at least $25,000. A financial 
assistance program may have its own definitions of capital improvement 
for purposes of compensatory mitigation as long as it includes all 
capital improvements as defined here.
    (c) Can real property managed, maintained, or operated with funding 
from a Service-administered financial assistance award be used for 
purposes of compensatory mitigation?
    The Service makes this decision based on 2 CFR 200.300.311(a) and 
(b). Regulations at 50 CFR 80.134 also apply to real property managed, 
maintained, or operated by an award from the Wildlife Restoration 
program, Sport Fish Restoration program, and Enhanced Hunter Education 
and Safety programs.
    (d) Are funds or in-kind contributions that have been used or will 
be used to satisfy compensatory-mitigation requirements eligible as 
match in a Service-administered financial assistance program?
    The Service makes this decision based on 2 CFR 200.300; 2 CFR 
200.403(a); and 2 CFR 200.404(a), (b), and (d). For compensatory 
mitigation required by the CWA, the Service makes this decision in 
compliance with 33 CFR 332.3(j)(2) and 40 CFR 230.93(j)(2). The final 
rule for these regulations was published in the Federal Register on 
April 10, 2008 (73 FR 19594). Its preamble clarifies the intent of 
Sec. Sec.  332.3(j)(2) and 230.93(j)(2) in the following example: . . . 
if a Federal program has a 50 percent landowner match requirement, 
neither the federally funded portion of the project, nor the 
landowner's 50 percent match, which is part of the requirements for 
obtaining

[[Page 83470]]

Federal funding, may be used for compensatory mitigation credits. 
However, if the landowner provides a greater than 50 percent match, any 
improvements provided by the landowner over and above those required 
for federal funding could be used as compensatory mitigation credits.

National Environmental Policy Act (NEPA)

    We have analyzed this Policy in accordance with the criteria of the 
National Environmental Policy Act, as amended (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). Issuance of policies, directives, regulations, 
and guidelines are actions that may generally be categorically excluded 
under NEPA (43 CFR 46.210(i)). Based on comments received, we 
determined that a categorical exclusion can apply to this Policy, but 
nevertheless, the Service chose to prepare an environmental assessment 
(EA) to inform decision makers and the public regarding the possible 
effects of the policy revisions. We announced our intent to prepare an 
EA pursuant to NEPA when we published the proposed revised policy. We 
requested 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 during 
the comment period on the proposed revised policy. Comments from the 
public were considered in the drafting of the final EA. The final EA is 
available on the Internet at http://www.regulations.gov at Docket 
Number FWS-HQ-ES-2015-0126.

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.

Mitigation Policy of the U.S. Fish and Wildlife Service

1. Purpose

    This Policy applies to all actions for which the U.S. Fish and 
Wildlife Service (Service) has specific authority to either recommend 
or to require the mitigation of impacts to fish, wildlife, plants, and 
their habitats. Most applications of this Policy are advisory. The 
purpose of this 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.
    The guidance of this Policy:
     Provides a framework for formulating measures to maintain 
or improve the status of affected species through an application of the 
mitigation hierarchy informed by a valuation of their affected 
habitats;
     will help align Service-recommended mitigation with 
conservation objectives for affected resources and the strategies for 
achieving those objectives at ecologically relevant scales;
     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 
conservation with other action purposes; and
     allows for variations appropriate to action- and resource-
specific circumstances.
    This Policy supersedes the Fish and Wildlife Service Mitigation 
Policy (46 FR 7644-7663) published in the Federal Register on January 
23, 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 (FPA)
 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.

While all of the statutes listed above give the Service an advisory 
role in fish and wildlife mitigation, not all of them give the Service 
authority to require others to implement the mitigation measures we 
identify. Circumstances under which the Service has specific authority 
to require, consistent with applicable laws and regulations, one or 
more forms of mitigation for impacts to fish and wildlife resources 
include:
     Actions that the Service carries out, i.e., the Service is 
the action proponent;
     actions that the Service funds;
     actions to restore damages to fish and wildlife resources 
caused by spills of oil and other hazardous materials under the Oil 
Pollution Act and the Comprehensive Environmental Response, 
Compensation, and Liability Act;
     actions of other Federal agencies that require an 
incidental take statement under section 7 of the ESA (measures to 
minimize the impact of the incidental taking on the species);
     actions of non-Federal entities that require an incidental 
take permit under section 10 of the ESA (measures to minimize and 
mitigate the impacts of the taking on the species to the maximum extent 
practicable);
     fishway prescriptions under section 18 of the FPA, which 
minimize, rectify, or reduce over time through management, the impacts 
of non-Federal hydropower facilities on fish passage;
     license conditions under section 4(e) of the FPA for non-
Federal hydropower facilities affecting Service properties (e.g., a 
National Wildlife Refuge) for the protection and utilization of the 
Federal reservation consistent with the purpose for which such 
reservation was created or acquired;
     actions that require a ``Letter of Authorization'' or 
``Incidental

[[Page 83471]]

Harassment Authorization'' under the MMPA; and
     actions that require a permit for non-purposeful 
(incidental) take of eagles under the Eagle Act.

Our aim with this Policy is to provide a common framework for Service 
discretion across the full range of our authorities, including those 
listed above for which the Service may require mitigation, but the 
Policy does not alter or substitute for the regulations implementing 
any of these authorities.

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 in section 3.1. The scope of resources addressed by 
this Policy 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 recommend mitigation for other resources under 
appropriate authorities.
    The types of resources for which the Service is authorized to 
recommend 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 section 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 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, during early planning for design of the action, 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.). Consistent with NEPA (42 U.S.C. 4332(A)) (40 CFR 
1500.2 and 1501.2) and the CEQ and the Advisory Council on Historic 
Preservation (ACHP), NEPA NHPA Section 106 Handbook, these reviews will 
be integrated into the decisionmaking process at the earliest possible 
point in planning for the action. 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 
decisionmaking process under NEPA.

[[Page 83472]]

3.5. Financial Assistance Programs and Mitigation
    The Service has more than 60 financial assistance programs, which 
collectively 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. As informed 
by established conservation objectives and strategies, Service 
mitigation recommendations will focus primarily on important, scarce, 
or sensitive resources, and will specify the means and measures that 
achieve the planning goal.
    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 impacts. 
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. Avoid high-value habitats. The Service will seek avoidance of 
all impacts to high-value habitats. High-value habitats make an 
exceptional contribution to the conservation of species. Preventing 
impacts to these habitats is the most effective means of maintaining 
the current status of a species, which is the minimum goal of this 
Policy.
    d. 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 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, local governments, and other stakeholders 
to design mitigation strategies that will prevent fragmented landscapes 
and restore core areas and connectivity necessary to sustain species.
    e. 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.
    f. 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.
    g. 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 action proponents 
provide assurances of durability, including financial assurances, to 
support the development, maintenance, and long-term effectiveness of 
the mitigation measures.
    h. Effective compensatory mitigation. The Service will recommend 
implementing compensatory mitigation before the impacts of an action 
occur. The Service will recommend compensatory mitigation that provides 
benefits to the affected species that are additional to the benefits of 
existing conservation efforts or those planned for the reasonably 
foreseeable future. To ensure consistent implementation of compensatory 
mitigation, the Service will support the 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 
decisionmaking 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 recommends or requires 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

[[Page 83473]]

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. Proactive 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. Followup. 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 recommendations and requirements into conservation 
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.
    When 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);

[[Page 83474]]

     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 
affected 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. Service personnel will 
use a landscape approach based on analysis of information regarding 
resource needs, including priorities for impact avoidance and potential 
compensatory mitigation sites. Such information includes development 
trends and projected habitat loss or conversion, cumulative impacts of 
past development activities, the presence and needs of species, and 
restoration potential. Service personnel may access this information in 
existing mapping products, survey data, reports, studies, or other 
sources.
Proactive Mitigation Planning at Larger Scales
    The Service supports the planning and implementation of proactive 
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. Proactive mitigation plans should complement or tier 
from existing conservation plans relevant to the affected resources 
(e.g., recovery plans, habitat conservation plans, or nongovernmental 
plans). Effective and efficient proactive mitigation identifies 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 nongovernmental plans that 
identify such priorities.
    Developing proactive mitigation should involve stakeholders in a 
transparent process for defining objectives and the means to achieving 
those objectives. Planning for proactive 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. Proactive mitigation 
plans, not limited to those developed under a programmatic NEPA 
decisionmaking process or a Habitat Conservation Plan process, will 
provide efficiencies for project-level Federal actions and will also 
better address potential cumulative impacts.
    Procedurally, proactive 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 proactive 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. Whenever appropriate, the 
Service will:
    a. Coordinate activities with the appropriate Federal, State, 
tribal, and local agencies and other stakeholders who have 
responsibilities for fish and wildlife resources when developing 
mitigation recommendations for resources of concern to those entities;
    b. consider resources and plans made available by State, local, and 
tribal governments and other Federal agencies;

[[Page 83475]]

    c. seek to apply compatible approaches and avoid duplication of 
efforts with those same entities;
    d. collaborate with Federal and State agencies, tribes, local 
agencies 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 decisionmaking 
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.
    When collaborating with stakeholders, Service staff should utilize 
the principles and recommendations set forth in the Council on 
Environmental Quality handbook, Collaboration in NEPA--a Handbook for 
NEPA Practitioners (2007).
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. Impacts may be direct, indirect, or 
cumulative. Indirect effects are often major drivers in ecological 
systems. Because indirect impacts from an action occur later in time or 
farther removed in distance, they may have landscape-scale 
implications. Mitigation is the general label for all measures 
implemented to avoid, minimize, and/or compensate for its predicted 
impacts.
    The Service should design mitigation measures to achieve the 
mitigation goal, when appropriate, of net gain, 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 
decisionmakers, action proponents, and the public to compare present 
and predicted future conditions for affected resources;
    b. measure adverse and beneficial effects using equivalent metrics 
to determine mitigation measures necessary to achieve the mitigation 
policy goal for the affected resources (e.g., measure both adverse and 
beneficial effects to a species' food resources via changes to the 
density or spatial extent of the food resource);
    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. However, one or more species

[[Page 83476]]

of conservation interest to the Service is always 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, 
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.

[[Page 83477]]

    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 (i.e., scarce 
and of high suitability and high importance) 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 onsite 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 or requirements 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, Followup.
    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 (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.

[[Page 83478]]

    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. Maintain or replace equipment and structures in affected areas 
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.
    Onsite restoration of an affected resource meets the definition of 
rectify and is not considered compensation under this Policy. Although 
compensation is usually accomplished outside the affected area, onsite 
compensation under the definitions of this Policy involves provision of 
a habitat resource within the affected area that was not adversely 
affected by the action, but that would effectively address the action's 
effect on the conservation of the evaluation species. For example, an 
action reduces food resources for an evaluation species, but in dry 
years, water availability is a more limiting factor to the species' 
status in the affected area. Increasing the reliability of water 
resources onsite may represent a practicable measure that will more 
effectively maintain or improve the species' status than some degree of 
rectifying the loss of food resources alone, even though the action did 
not affect water availability. In this example, measures to restore 
food resources are rectification, and measures to increase water 
availability are onsite compensation.
    Multiple mechanisms may accomplish 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 onsite or offsite 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

[[Page 83479]]

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 nonprofit 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 5.7.1 for discussion of the Service's preference for 
compensatory mitigation that occurs prior to impacts.
    The Service's preference is that proponents 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.
5.6.3.1 Equivalent Standards
    The mechanisms for delivering compensatory mitigation differ 
according to: (1) Who is ultimately 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 (onsite) 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.
    Service recommendations or requirements will apply equivalent 
ecological, procedural, and administrative standards for all 
compensatory mitigation mechanisms. Departmental guidance at DM 6.6 C 
declares a preference for compensatory mitigation measures that will 
maximize the benefit to affected resources, reduce risk to achieving 
effectiveness, and use transparent methodologies. Mitigation that the 
Service recommends or approves through any compensatory mitigation 
mechanism should incorporate, address, or identify the following that 
are intended to ensure successful implementation and durability:
    a. Type of resource(s) and/or its value(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.
    Third parties may assume the responsibilities for implementing 
proponent-responsible compensation. The third party accepting 
responsibility for the compensatory actions would assume all of the 
proponent's obligations for ensuring their success and durability.
5.6.3.2 Research and Education
    Research and education, although important to the conservation of 
many resources, are not typically considered compensatory mitigation, 
because they do not directly offset adverse effects to species or their 
habitats. In rare circumstances, research or education that is directly 
linked to reducing threats, or that provides a quantifiable benefit to 
the species, may be included as part of a mitigation package. These 
circumstances may exist when: (a) The major threat to a resource is 
something other than habitat loss; (b) the Service can reasonably 
expect the outcome of research or education to more than offset the 
impacts; (c) the proponent commits to using the results/recommendations 
of the research to mitigate action impacts; or (d) no other reasonable 
options for mitigation are available.
5.7. Recommendations
    Consistent with applicable authorities, the Policy's fundamental 
principles, and the mitigation planning 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

[[Page 83480]]

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 for Compensatory Mitigation
    Unless action-specific circumstances warrant otherwise, the Service 
will observe the following preferences in providing compensatory 
mitigation recommendations:
    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. Even 
though compensatory mitigation may be initiated in advance of project 
impacts, there may still be temporal losses that need to be addressed. 
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 
widespread 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 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 Compensatory 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

[[Page 83481]]

of the mitigation land is commensurate 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, for example, off-road 
vehicle use in an area conserved for wildlife intolerant to 
disturbance, the Service will recommend against such uses.
5.8. Documentation
    The Service should advise action proponents and decisionmaking 
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. Where compensation is used to address impacts, additional 
information outlined in section 5.6.3 may be necessary.
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 
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 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 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. Followup
    The Service encourages, supports, and will initiate, whenever 
practicable and within our authority, 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.

[[Page 83482]]

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 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.
    Baseline. Current and future environmental conditions (relevant to 
the resources covered by this Policy) that are expected without 
implementation of the proposed action under review. Predictions about 
future environmental conditions without the action should account for 
natural species succession, implementation of approved land and 
resource management plans, and any other reasonably foreseeable factors 
that influence these conditions.
    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, 
State, tribal 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 Credit Exchange. An environmental market that operates as a 
clearinghouse in which an exchange administrator, operating as a 
mitigation sponsor, manages credit transactions between compensatory 
mitigation providers and project permittees. This is in contrast to the 
direct transactions between compensatory mitigation providers and 
permittees that generally occur through conservation banking and in-
lieu fee programs. Exchanges provide ecological functions and services 
expressed as credits that are permanently conserved and managed for 
specified species and are used to compensate for adverse impacts 
occurring elsewhere to the same species.
    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

[[Page 83483]]

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 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 decisionmaking, 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 and/or 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

[[Page 83484]]

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; golden eagle nest take for resource 
development and recovery; nonpurposeful (incidental) take; and 
removal or destruction of eagle nests.
    The Eagle Act provides for mitigation in the form of avoidance 
and minimization by restricting permitted take to circumstances 
where take is ``necessary.'' While not expressly addressed, 
compensatory mitigation can also be used as a tool for ensuring that 
authorized take is consistent with the preservation standard of the 
Eagle Act. The regulations for eagle nest take permits and eagle 
non-purposeful incidental take permits explicitly provide for 
compensatory mitigation. Although eagle habitat (beyond nest 
structures) is not directly protected by the Eagle Act, the statute 
and implementing regulations do not preclude the use of habitat 
restoration, enhancement, and protection as compensatory mitigation.
    At the time of development of this Appendix A, the threshold for 
authorized take of golden eagles is set at zero throughout the 
United States because golden eagle populations appear to be stable 
and potentially declining, and may not be able to absorb additional 
take while still maintaining current numbers of breeding pairs over 
time. Accordingly, all permits for golden eagle take must 
incorporate compensatory mitigation. Because golden eagle 
populations are currently primarily constrained by a high level of 
unauthorized human-caused mortality, rather than habitat loss, 
permits for golden eagle take require mitigation to be in the form 
of a reduction of a source of mortality; however, habitat 
restoration and enhancement could potentially offset permitted take 
in some situations, once reliable standards and metrics are 
developed to support the application of habitat-based mitigation to 
offset permitted take.

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 recommend 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 (Corps 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 ensure 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 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. 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

[[Page 83485]]

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. That 
incidental take statement must comply with all applicable 
regulations. 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 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 ESA, 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'' (2.2 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; 
restoring and enhancing the habitat of migratory birds; and 
preventing or abating 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 Impacts 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 
decisionmaking 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 
America'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, which 
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) requires 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. However, this section focuses on 
incidental take authorizations for non-commercial fishing 
activities.
    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

[[Page 83486]]

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) of the MMPA 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 effecting 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, and on the availability of such 
species or stock for subsistence uses. In addition, ITRs include 
requirements pertaining to the monitoring and reporting of such 
takings.
    Under the ITRs, a U.S. citizen may request 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 one 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. In addition, ``small numbers'' and 
``specified geographical region'' requirements do not apply to 
military readiness activities.
    The IHA prescribes permissible methods of taking by harassment 
and includes other means of effecting 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 and to the extent compatible with the authorities of the 
MMPA. Proponents may adopt these recommendations as components of 
proposed actions. However, such adoption itself does not constitute 
compliance with the MMPA. In addition, IHAs or LOAs issued under 
ITRs specify the permissible methods of taking and other means of 
effecting the least practicable adverse impact on the species or 
stock and its habitat, and on the availability for subsistence 
purposes. Those authorizations also outline required monitoring and 
reporting of takes.

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 the 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 decisionmaking processes by considering impacts of their 
proposed actions and reasonable alternatives. Agencies disclose 
findings through an environmental assessment 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 (64 FR 49229-49234, 
September 10, 1999) (Refuge Mitigation Policy)

    The Service's Final Policy on the National Wildlife Refuge 
System and Compensatory Mitigation under the section 10/404 Program 
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

[[Page 83487]]

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)

    Under the Oil Pollution Act (33 U.S.C. 2701 et seq.) (OPA) and 
the Comprehensive Environmental Response, Compensation and Liability 
Act (42 U.S.C. 9601) (CERCLA), 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 injuries to determine 
appropriate restoration necessary to compensate the public for 
losses of those resources or their services. Nothing in this Policy 
supersedes the statutes and regulations governing the natural 
resource damage provisions of CERCLA, OPA, and the CWA.
    The Service is often a participating bureau, supporting the 
Department of the Interior, during NRDAR. 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)).
    In the Presidential Memorandum on Mitigating Impacts on Natural 
Resources from Development and Encouraging Related Private 
Investment (November 3, 2015), DOI is charged with developing 
guidance describing considerations for evaluating whether, where, 
and when tools and techniques used in mitigation--including 
restoration banking or advance restoration projects--would be 
appropriate as components of a restoration plan resolving natural 
resource damage claims. Pending promulgation of that guidance, the 
tools provided in section 5 maintain the flexibility to implement 
the appropriate restoration to restore injured resources under the 
jurisdiction of multiple governments, 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. North American Wetlands Conservation Act, 16 U.S.C. 4401 et seq.
11. Pittman-Roberts Wildlife Restoration Act; 16. U.S.C. 669-669k
12. Dingell-Johnson Sport Fish Restoration Act; 16 U.S.C. 777-777n, 
except 777e-1 and g-1
13. 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. National Coastal Wetlands Conservation Grants, 16 U.S.C. 3954, 50 
CFR part 84
8. Natural Resource Damage Assessments (OPA), 15 CFR part 990, 33 
U.S.C. 2701 et seq.
9. Natural Resource Damage Assessments (CERCLA), 43 CFR part 11, 42 
U.S.C. 9601
10. 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.
11. Powers of the Secretary (43 U.S.C. 1201), 43 CFR part 24

D. Executive Orders

1. Executive Order 13186, Responsibilities of Federal Agencies to 
Protect Migratory Birds, January 10, 2001
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, Federal Actions To Address Environmental 
Justice in Minority and Low-Income 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. Collaboration in NEPA, a Handbook for NEPA Practitioners (October 
2007)
5. Memorandum, ``Appropriate Use of Mitigation and Monitoring and 
Clarifying the Appropriate Use of Mitigated Findings of No 
Significant Impact'' (January 14, 2011)
6. ``Memorandum on Environmental Collaboration and Conflict 
Resolution'' (September 6, 2012)
7. NEPA and NHPA, a Handbook for Integrating NEPA and Section 106 
(March 2013)
8. Memorandum for Heads of Federal Departments and Agencies, 
``Effective Use of Programmatic NEPA Reviews'' (December 18, 2014)
9. Memorandum: ``Final Guidance for Federal Departments and Agencies 
on Consideration of Greenhouse Gas Emissions and the Effects of 
Climate Change in National Environmental Policy Act Reviews'' 
(August 1, 2016)

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

[[Page 83488]]

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. USFWS Tribal Consultation Handbook, 2011
11. Service Climate Change Adaptation Policy, 056 FW 1
12. USFWS Native American Policy, 510 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

    This appendix addresses Service responsibilities for applying 
this Policy when we are formulating our own proposed actions under 
the NEPA decision making process. Service personnel may also use 
this appendix as guidance for providing mitigation recommendations 
when reviewing the proposed actions of other Federal agencies under 
NEPA. However, comments that we provide are advisory to other 
Federal agencies in the NEPA context as an agency with special 
expertise regarding mitigating impacts to fish and wildlife 
resources. Consistent with their authorities, action agencies choose 
whether to adopt, in whole or in part, mitigation recommendations 
received from other agencies and the public, including the Service. 
Any requirements of other Federal agencies to mitigate impacts to 
fish and wildlife resources are governed by applicable statutes and 
regulations.

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). At 
the earliest stage possible in the planning process, and prior to 
making any detailed environmental review, the Service will ``consult 
with and obtain the comments of any Federal agency which has 
jurisdiction by law or special expertise with respect to any 
environmental impact involved.'' (42 U.S.C. 4332(C)) Early 
coordination avoids delays, reduces potential conflicts, and helps 
ensure compliance with other statutes and regulations. When scoping 
the issues for the review, the Service will ``invite the 
participation of affected Federal, State, and local agencies, any 
affected Indian tribe, the proponent of the action, and other 
interested persons (including those who might not be in accord with 
the action on environmental grounds).'' (40 CFR 1501.7(a)(1))
    NEPA 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 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 the 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

[[Page 83489]]

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), and 
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. 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 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 reviews can establish standards for 
consideration and implementation of mitigation, and can more 
effectively address cumulative impacts. The programmatic NEPA 
reviews can facilitate decisions on agency actions that precede 
site- or project-specific decisions and actions, such as mitigation 
alternatives or commitments for subsequent actions, or narrowing of 
future alternatives. To ensure that landscape-scale mitigation 
planning is effectively implemented and meets conservation goals, as 
appropriate, the Service should seek and consider collaborative 
opportunities to conduct programmatic NEPA decisionmaking processes 
on Service actions that are similar in timing, impacts, 
alternatives, resources, and mitigation. The Service should consider 
developing standard mitigation protocols or objectives in a 
programmatic NEPA review in order to provide a framework and scope 
for the subsequent tiered analysis of environmental impacts. 
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. When considering 
programmatic NEPA reviews, the Service should adopt approaches 
consistent with the December 18, 2014, CEQ Memorandum: Effective Use 
of Programmatic NEPA Reviews.
    Appropriate treatment of climate change in NEPA reviews is 
essential to development of meaningful mitigation. The Service 
approach should be consistent with the August 1, 2016, CEQ 
Memorandum: Final Guidance for Federal Departments and Agencies on 
Consideration of Greenhouse Gas Emissions and the Effects of Climate 
Change in National Environmental Policy Act Reviews, which guides 
the consideration of reasonable alternatives and recommends agencies 
consider the short- and long-term effects and benefits in the 
alternatives and mitigation analysis.

C. Collaboration

    Collaboration is an important component of mitigation planning, 
especially at the landscape or programmatic level. A collaborative 
NEPA process can offer the Service many benefits regarding 
development and implementation of mitigation, including, but not 
limited to: Better information regarding mitigation options by 
accessing relevant scientific and technical expertise and knowledge 
relating to local resources; a fairer process by involving most or 
all interests involved in determining mitigation; conflict 
prevention by dealing with issues related to mitigation as they 
arise; and easier implementation because all the stakeholders feel 
vested in the implementation of mitigation. Therefore, when 
considering and engaging in collaboration, the Service should, to 
the extent applicable, utilize the principles and recommendations 
set forth in the Office of Management and Budget and CEQ Memorandum 
on Environmental Collaboration and Conflict Resolution (2012) and 
the CEQ handbook, Collaboration in NEPA-a Handbook for NEPA 
Practitioners (2007).

D. 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. 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. As required, the Service will initiate Section 106 
consultation with Indian tribes during early planning for FWS 
proposed actions, to ensure their rights and concerns are 
incorporated into project design. Consultation will continue 
throughout all stages of the process, including during consideration 
of mitigation.

E. Integrating the Mitigation Policy Into the NEPA Process

    When the Service is the lead or co-lead Federal agency for NEPA 
compliance, this 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 this Policy in Service decisionmaking 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

[[Page 83490]]

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 decisionmakers with a choice between a 
``conservation alternative'' and a ``no conservation alternative.''

Alternatives

    The alternatives should include, as appropriate, an alternative 
that includes design components or mitigation measures to achieve a 
net benefit for affected resources and an alternative that includes 
design components or mitigation measures to achieve no-net-loss of 
affected resources. Alternatives that include provisions for 
mitigation based upon different climate change projections will help 
guide the development of appropriate responses, and will facilitate 
the ability to change mitigation responses more quickly to ones 
already analyzed but not previously adopted.

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 decisionmaking supported by an 
environmental impact statement. Determining significance considers 
both the context and intensity of effects. For resources covered by 
this 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 onsite or 
offsite 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: (a) Measures to 
achieve outcomes of no net loss or net gain; (b) the types of 
mitigation measures adopted for each evaluation species or suite of 
species; (c) the spatial and temporal application and duration of 
the measures; (d) compliance and effectiveness monitoring; (e) 
criteria for remedial action; and (f) unmitigable residual effects.

Appendix C. Compensatory 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 financial assistance programs has at 
least one statutory authority, which are listed in the Catalog of 
Federal Domestic Assistance at http://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. 
Consistent with this Policy, the regulations at 50 CFR part 84 
authorize the use of Natural Resource Damage Assessment funds as 
match in the National Coastal Wetlands Conservation Program. 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 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 financial assistance programs. If the Service 
shares responsibility for approving or administering an award with 
another entity, this 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?

     Most mitigation issues in financial assistance relate to: (a) 
The proposed use of mitigation funds on land acquired with Federal 
financial assistance, and (b) using either mitigation funds or in-
kind

[[Page 83491]]

contributions derived from mitigation, as match. 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 to leverage the Federal funds.

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 statutorily authorized 
and/or appropriated 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 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 statutorily authorized 
and/or appropriated for use as compensatory mitigation for specific 
projects or categories of projects.
    c. The project 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 those regulations and section E 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 may approve an award that satisfies a 
compensatory mitigation requirement of a State, tribal, or local 
government, if satisfying the mitigation requirement is incidental 
to a project purpose consistent with the purposes(s) of the program. 
It is solely the responsibility of the State, tribal, or local 
government to determine that its mitigation requirement has been 
satisfied and to submit any required certifications to that effect.
    2. Satisfying a State, tribal, or local government mitigation 
requirement with Federal financial assistance or contributing match 
originating from such a requirement to a Federal award must not be 
contrary to any law, regulation, or policy of the State, tribal, or 
local government, as applicable.

H. Can a project on land already designated for the conservation of 
natural resources generate credits for compensatory mitigation?

    1. A project on public, private, or federally recognized tribal 
lands already designated for conservation of natural resources can 
generate credits for compensatory mitigation if it meets the 
requirements of section 5.7.2. One of these requirements is that the 
benefits of the mitigation measures must be additional. If the 
authority for the compensatory mitigation is the Clean Water Act and 
if public land is proposed as the site of the project, it must also 
comply with 33 CFR 332.3(a)(3) and 40 CFR 230.93(a)(3), both of 
which read:

. . . Credits for compensatory mitigation projects on public land 
must be based solely on aquatic resource functions provided by the 
compensatory mitigation project, over and above those provided by 
public programs already planned or in place. . . .


[[Page 83492]]


    Public land includes only those real property interests owned or 
held by Federal, State, and local governments, and instrumentalities 
of any of these governments.
    To be either ``additional'' or ``over and above,'' the benefits 
must 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. Baseline conditions are: (a) Those 
that exist, and (b) those that a public land-management agency is 
foreseeably expected to implement absent the mitigation.
    2. Examples of baseline conditions that a land-management agency 
or organization is foreseeably expected to implement are:
    a. Management outcomes or environmental benefits required for a 
land-management unit by a statute, regulation, covenant in a deed, 
facility-management plan, or an integrated natural resources 
management plan, e.g., (a) huntable populations of big game, (b) 
Class A wild trout populations at Class A densities, and (c) habitat 
diversity. When evaluating existing plans under sections H.2.a or b, 
the Service must defer to State and tribal plans to determine which 
additional benefits to count toward achieving the mitigation 
planning goal as long as the plans are consistent with Federal law 
and regulation and this Policy.
    b. Management responsibilities assigned to an agency by statute, 
regulation, facility management plan, or integrated natural 
resources management plan, e.g., (a) resource protection, (b) 
habitat management, and (c) fire management.
    c. Commitments made under a financial-assistance award by the 
recipient, a subrecipient, or a partner to achieve certain 
management outcomes or environmental benefits for a land-management 
unit. The source of the funding to carry out these commitments may 
be the awarding agency, a match provider, and/or other contributors.
    3. Projects that are not part of annual operations and 
maintenance are not baseline conditions if they are unfunded and 
have little prospect of funding, even if these projects are 
authorized in a statute or called for in a plan. Examples of 
projects that may be authorized in a statute or called for in a 
plan, but may have little prospect for funding are: (a) Construction 
of a high-volume pump station, (b) demolition of a dam, (c) 
reforestation of 1,000 acres of former agricultural land, and (d) 
acquisition of real property.
    4. If it is unclear whether the proposed mitigation would 
provide additional conservation benefits after considering the above 
guidance, financial assistance managers must use judgment in making 
a decision. The overarching principles in making this decision 
should be: (a) Consistency with regulations, and (b) avoidance of an 
unauthorized subsidy to anyone who has a legal obligation to 
compensate for the environmental impacts of a project.
    5. 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:
    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.

I. Does the Service's Mitigation Policy affect financial assistance 
programs and awards managed by other Federal entities?

    1. This Policy affects only those Federal financial assistance 
programs and awards in which the Service has the authority to 
approve or disapprove applications for financial assistance or 
changes in the terms and conditions of an award. It also affects 
real property or equipment acquired or improved with a Service-
administered financial assistance award where the recipient must 
continue to manage the real property or equipment for its originally 
authorized purpose as long as it is needed for those purposes.
    2. The Policy has no effect on other Federal agencies' policies 
on match or cost share as long as those policies do not affect:
    a. Restrictions in the Policy on the use of Service-approved or 
administered financial assistance awards for generating compensatory 
mitigation credits, and
    b. the Service's responsibilities as identified in Federal 
statutes or their implementing regulations.
    3. This Policy does not take precedence over the requirements of 
any Federal statute or regulation whether that statute or regulation 
applies to a Service program or a program of another Federal agency.

    Dated: November 9, 2016.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.

[FR Doc. 2016-27751 Filed 11-18-16; 8:45 am]
 BILLING CODE 4333-15-P