[Federal Register Volume 83, Number 146 (Monday, July 30, 2018)]
[Rules and Regulations]
[Pages 36472-36475]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-16172]



Fish and Wildlife Service

50 CFR Chapter I

[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: Policy; withdrawal.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce we 
are withdrawing the Mitigation Policy published November 21, 2016, 
which guides Service recommendations on mitigating the adverse impacts 
of land and water developments on fish, wildlife, plants, and their 
habitats. In our document of November 6, 2017, we requested additional 
public comments regarding this policy's overall mitigation planning 
goal of net conservation gain. We are now withdrawing this policy as it 
is no longer appropriate to retain the ``net conservation gain'' 
standard throughout various Service-related activities and is 
inconsistent with current Executive branch policy. Until further 
notice, all policies that were superseded by the 2016 Mitigation Policy 
are reinstated, including the Fish and Wildlife Service Mitigation 
Policy (46 FR 7644-7663) published in the Federal Register on January 
23, 1981.

DATES: Withdrawal effective on July 30, 2018.

ADDRESSES: Comments and materials received, as well as supporting 
documentation, 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 Mitigation Policy (81 FR 83440, November 
21, 2016) was developed to ensure consistency with directives in effect 
at the time of issuance, including former President Obama's Memorandum 
on Mitigating Impacts on Natural Resources From Development and 
Encouraging Related Private Investment (November 3, 2015). Under the 
memorandum, all Federal mitigation policies were directed to clearly 
set a net-benefit goal or, at minimum, a no-net-loss goal for natural 
resources, wherever doing so is allowed by existing statutory authority 
and is consistent with agency mission and established natural resource 
objectives. The Presidential Memorandum was subsequently rescinded by 
Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth'' (March 28, 2017).
    The Mitigation Policy also described its consistency with the 
Secretary of the Interior's Order 3330 on Improving Mitigation Policies 
and Practices of the Department of the Interior (October 31, 2013), 
which 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 Secretary's Order was subsequently revoked by 
Secretary of the Interior's Order 3349 on American Energy Independence 
(March 29, 2017). It directed Department of the Interior bureaus to 
reexamine mitigation policies and practices to better balance 
conservation strategies and policies with job creation for American 
    In light of the revocation of the 2015 Presidential Memorandum and 
Secretary's Order 3330, on November 6, 2017, the Service requested 
comment on the Mitigation Policy, as well as the Endangered Species 
Act--Compensatory Mitigation Policy (81 FR 95316, December 27, 2016), 
specifically ``regarding whether to retain or remove net conservation 
gain as a mitigation planning goal within our mitigation policies.'' 
Mitigation Policies of the U.S. Fish and Wildlife Service; Request for 
Comment (82 FR 51382, 51383, November 6, 2017). The comment period for 
this request ended on January 5, 2018.
    Under Supreme Court precedent, the Takings Clause of the Fifth 
Amendment of the United States Constitution limits the ability of 
government to require monetary exactions as a condition of permitting 
private activities, particularly private activities on private 
property. In Koontz v. St. Johns River Water Management District, 570 
U.S. 595 (2013), the Supreme Court held that a proposal to fund offsite 
mitigation proposed by the State of Florida as a condition of granting 
a land-use permit must satisfy the test established in Nollan v. 
California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of 
Tigard, 512 U.S. 374 (1994). Specifically, ``a unit of government may 
not condition the approval of a land-use permit on the owner's 
relinquishment of a portion of his property unless there is a `nexus' 
and `rough proportionality' between the government's demand and the 
effects of the proposed land use.'' Id. at 599.
    Compensatory mitigation requirements in particular raise serious 
questions of whether there is a sufficient nexus between the potential 
harm and the proposed remedy to satisfy constitutional muster. Further, 
because by definition compensatory mitigation does not directly avoid 
or minimize the anticipated harm, its application is particularly ripe 
for abuse. These concerns are particularly acute when coupled with a 
net conservation gain standard, which necessarily goes beyond 
mitigating actual or anticipated harm to forcing participants to pay to 
address harms they, by definition, did not cause.
    In light of the change in national policy reflected in Executive 
Order 13783 and Secretary's Order 3349, the comments received by the 
Service, and concerns regarding the legal and policy implications of 
compensatory mitigation, particularly compensatory mitigation with a 
net conservation gain policy, the Service has concluded that it is no 
longer appropriate to retain references to or mandate a net 
conservation gain standard in the Service's overall mitigation planning 
goal within each document. Because the net conservation gain standard 
is so prevalent throughout the Mitigation Policy, the Service is 
implementing this conclusion by withdrawing the Mitigation Policy.

Summary of Comments and Responses

    Executive Order 13783--``Promoting Energy Independence and Economic 
Growth'' (March 28, 2017)--rescinded the Presidential Memorandum on 
Mitigating Impacts on Natural Resources from Development and 
Encouraging Related Private Investment. The Secretary of the Interior 
subsequently issued Secretarial Order 3349 on American Energy 
Independence (March 29, 2017), which directed Department of the 
Interior (DOI) bureaus to reexamine mitigation policies and practices 
to better balance conservation strategies and policies with job 
creation for American families. Pursuant to Secretarial Order 3349, we 
published a

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notice on November 6, 2017 (82 FR 51382), requesting additional public 
comments specifically addressing the advisability of retaining or 
removing references to net conservation gain as a mitigation planning 
goal within our mitigation policies. In addition, in carrying out 
Executive Order 13777, ``Enforcing the Regulatory Reform Agenda,'' DOI 
published a document with the title ``Regulatory Reform'' in the 
Federal Register of June 22, 2017 (82 FR 28429). The document requested 
public comment on how DOI can improve implementation of regulatory 
reform initiatives and policies and identify regulations for repeal, 
replacement, or modification. This notice addresses comments that DOI 
has received in response to the regulatory reform docket that relates 
to the Service's use of mitigation.
    During the combined comment periods, for the Service-wide 
Mitigation Policy we received approximately 427 comments from Federal, 
State, and local government entities, industry, trade associations, 
conservation organizations, nongovernmental organizations, private 
citizens, and others. Two of those submissions transmitted the discrete 
comments from an additional 1,756 citizens expressing support for the 
Service's mitigation policy approach. The range of comments otherwise 
varied from those that provided general statements of support or 
opposition to the draft or final Policy, to those that provided 
extensive comments and information supporting or opposing the draft or 
final 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 
    We considered all of the comments we received in the comment period 
beginning November 6, 2017 (82 FR 51382), and following the DOI's 
``Regulatory Reform'' Federal Register announcement (June 22, 2017, 82 
FR 28429); we respond to the substantive comments below.

A. Policy Addresses Multiple Authorities

    Comment (1): 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 
U.S. 595 (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: The Service agrees that the Koontz case, as well as 
predecessor cases including, but not limited to, Nollan v. California 
Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 
512 U.S. 374 (1994), raise serious constitutional concerns about the 
viability of some elements of the Service's mitigation programs. These 
concerns are particularly acute for offsite compensatory-mitigation 
programs and programs that seek a net conservation gain. Offsite 
compensatory-mitigation programs raise concerns regarding an 
appropriate nexus between the anticipated impact and the mitigation 
requirement. As mitigation moves further away from the direct impacts 
of a project, the risk that the connection between required 
compensation and the initial project becomes more attenuated increases. 
Further, by seeking to err on the side of mitigating above and beyond 
the impacts of the specific project at issue, a net conservation gain 
standard raises inherent concerns about proportionality, as well as the 
appropriate nexus between project impacts and mitigation methods, 
particularly where mitigation is in essence being used to rectify past, 
unrelated harms. We, like all agencies, must implement our authorities 
consistent with any applicable case law as appropriate. Consideration 
of the Constitutional standard set forth in Koontz is one reason, 
though not the only reason, that the Service is withdrawing its 
previous Mitigation Policy. In light of the Koontz case and any other 
relevant court decisions, the Service, in using its previous policies 
(e.g., 1981 Policy), will make sure that any statutorily authorized 
mitigation measures will have a clear connection (i.e., have an 
essential nexus) and be commensurate (i.e., have rough proportionality) 
to the impact of the project or action under consideration.
    Comment (2): Several commenters addressed aspects of the Service's 
authority under the Bald and Golden Eagle Protection Act (Eagle Act). 
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. The commenter 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.'' The commenter 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: We agree that the authority of the Eagle Act is limited, 
and the Service has outlined its authority in its regulations (50 CFR 
part 22). Nothing in the Eagle Act directly addresses eagle habitat, or 
requires that the Service apply a net conservation gain standard. 
Accordingly, the withdrawal of the 2016 Mitigation Policy and 
reinstatement of the 1981 Mitigation Policy will not change our 
authority under the Eagle Act.
    Comment (3): 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. The commenter 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: DOI's Office of the Solicitor issued M-Opinion 37050, The 
Migratory Bird Treaty Act Does Not Prohibit Incidental Take (M-
Opinion), on December 22, 2017, which concludes that the take of birds 
resulting from an

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activity is not prohibited by the MBTA when the underlying purpose of 
that activity is not to take birds. In addition, 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. Like the Eagle Act, the MBTA does not directly 
protect habitat. When the Service authorizes otherwise prohibited 
intentional take, however, it can make that authorization subject to 
appropriate conditions, including non-compensatory mitigation, such as 
measures to avoid, minimize, reduce, or rectify anticipated harm. 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 with the Service ``that shall promote the conservation of 
migratory bird populations.''
    Comment (4): One commenter specifically questioned the treatment of 
Natural Resource Damage Assessment actions conducted under the 
Comprehensive Environmental Response, Compensation, and Liability Act, 
Oil Pollution Act, and the Clean Water Act, 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: The Presidential Memorandum on Mitigation was rescinded 
by Executive Order 13783, Promoting Energy Independence and Economic 
Growth (March 28, 2017). Furthermore, when a release of hazardous 
substance or oil injures natural resources subject to the natural 
resource damage assessment and restoration trusteeship of States, 
Tribes, or the Federal Government, appropriate restoration is 
determined by the scope and scale of the injury and the nexus of the 
restoration action to that specific injury.

B. Net Conservation Gain/No Net Loss

    Comment (5): Many commenters addressed the Policy's mitigation 
planning goal of improving (i.e., a net gain) or, at minimum, 
maintaining (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. Of 
commenters opposed to net conservation gain, their specific reasons 
    (a) The Service lacks the statutory authority to implement the net 
conservation gain goal for mitigation planning.
    (b) The net conservation gain goal imposes a new standard for 
mitigation and that mitigation requirements should be commensurate with 
the level of impacts.
    (c) Concern about the costs associated with achieving net 
conservation gain.
    (d) Questions about the ability to achieve net conservation gain 
and how it would be measured.
    (e) The Policy does not provide the methodology to assess or 
measure the net conservation gain.
    (f) Net conservation gain is incompatible 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: We agree with concerns expressed by commenters that the 
Service generally lacks the statutory authority to implement ``net 
conservation gain'' for mitigation planning. No statute within the 
Service's purview mandates that the Service directly apply a net 
conservation gain standard. For example, under the Endangered Species 
Act (ESA), the standard for section 7 is that a ``Federal agency shall, 
in consultation with and with the assistance of the Secretary, insure 
that any action . . . is not likely to jeopardize the continued 
existence of any endangered species or threatened species or result in 
the destruction or adverse modification of habitat'' (Sec.  7(a)(2)); 
under section 10, the requirement is ``to the maximum extent 
practicable, minimize and mitigate the impacts of such taking'' (Sec.  
10(a)(2)(B)(ii)). As one court has noted, ``[t]he words `maximum extent 
practicable' signify that the applicant may do something less than 
fully minimize and mitigate the impacts of the take where to do more 
would not be practicable. Moreover, the statutory language does not 
suggest that an applicant must ever do more than mitigate the effect of 
its take of species.'' National Wildlife Federation v. Norton, 306 F. 
Supp. 2d 920, 928 (E.D. Cal. 2004); see also Union Neighbors United, 
Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. 2016) (holding that the 
obligation to minimize and mitigate to the maximum extent practicable 
was satisfied by a plan that the Service found to fully offset the 
impact of the proposed taking). Since what is ``practicable'' may not 
fully offset proposed take, the ``maximum extent practicable'' standard 
is inconsistent with both a general net conservation gain and a no-net-
loss mitigation objective. Nothing in the ESA requires that the Service 
apply a net conservation gain or no-net-loss standard.
    Those commenters supporting the goal generally asserted, among 
other points, that the Service has the authority to require 
compensatory mitigation, found the measures to be clear, and thought 
the policy encouraged consistent implementation. While we appreciate 
these comments, for the reasons described above, we are not persuaded.
    As ``net conservation gain'' was central to and integrated 
throughout the policies, in addition to the more recently issued 2017 
Executive and Secretarial Orders, modifying these policies would likely 
have caused even more confusion. Thus, we are withdrawing the 2016 
Mitigation Policy, and restoring the policies and guidance that were 
superseded by the 2016 policies.

C. Landscape-Scale Approach

    Comment (6): Several commenters described their concerns with the 
implications of the Policy's inclusion of a landscape-scale approach:
    (a) There is no statutory authority for taking a landscape-scale 
    (b) Including a landscape-scale approach would lead to the Service 
seeking mitigation for impacts beyond a project under review, including 
impacts that happened in the past or in unrelated locations. They said 
that meeting the standards of an applicable authority within the narrow 
geographic scope of their project is the proponent's only 
    (c) General concern that a landscape-scale approach would mean 
Federal overreach, including disregard for the

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plans, processes, and resource interests of States, tribes, and local 
    Response: We agree with commenters that proponents' and action 
agencies' responsibilities include the provisions of relevant 
authorities and that those responsibilities do not extend to impacts 
unrelated to their action. Requiring mitigation to impacts unrelated to 
a proponent's action would likely conflict with the ``essential nexus'' 
required under Koontz for property development (see Comment 1 above). 
Accordingly, any effort to apply a landscape-scale approach to 
mitigation must ensure that there is an essential nexus between the 
proposed activity and the contemplated mitigation and that mitigation 
is not being imposed to correct for past impacts by other actors.
    Section 5 of the Mitigation Policy, ``Mitigation Framework,'' calls 
for both consideration of a landscape-scale approach in addition to 
``net conservation gain.'' Because net conservation gain is integral to 
the policies, even though considerations of landscape-scale approaches 
may be useful in some cases, withdrawing these policies will reduce 
confusion over the net conservation gain goal. This notice does not 
affect the Service authorities that already allow the flexibility to 
consider landscape-scale approach. In some cases, taking the broader 
ecological context of both impacts and mitigation opportunities into 
account by applying a landscape-scale approach is an effective means of 
implementing the Service's mission in a way that also benefits 
National Environmental Policy Act (NEPA)
    We have analyzed the withdrawals of 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 that are of an administrative, financial, 
legal, technical, or procedural nature, or whose environmental effects 
are too broad, speculative, or conjectural to lend themselves to 
meaningful analysis and will later be subject to the NEPA process, 
either collectively or case-by-case may be categorically excluded under 
NEPA (43 CFR 46.210(i)). We have determined that a categorical 
exclusion applies to withdrawing this policy.
Paperwork Reduction Act of 1995
    This policy withdrawal does not contain any new collections of 
information that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.). OMB has reviewed and approved the information collection 
requirements for applications for incidental take permits, annual 
reports, and notifications of incidental take for native endangered and 
threatened species for safe harbor agreements, candidate conservation 
agreements with assurances, and habitat conservation plans under OMB 
Control Number 1018-0094, which expires on March 31, 2019. We may not 
conduct or sponsor and a person is not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.
Government-to-Government Relationship With Tribes
    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments,'' and the Department of 
the Interior Manual at 512 DM 2, we have considered possible effects on 
federally recognized Indian tribes and have determined that there are 
no potential adverse effects of withdrawing this policy. Our intent 
with withdrawing these policies is to reduce confusion of mitigation 
programs, projects, and measures, including those taken on Tribal 
lands. We will work with Tribes as applicants proposing mitigation as 
part of proposed actions and with Tribes as mitigation sponsors.


    The multiple authorities for this action include the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.); Fish and 
Wildlife Coordination Act, as amended, (16 U.S.C. 661-667(e)); and 
National Environmental Policy Act (42 U.S.C. 4371 et seq.).

    Dated: July 24, 2018.
Gregory J. Sheehan,
Principal Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-16172 Filed 7-27-18; 8:45 am]