[Federal Register Volume 88, Number 93 (Monday, May 15, 2023)]
[Notices]
[Pages 31000-31001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10341]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-HQ-ES-2021-0014; FF09E30000 FXES11140900000 234]
RIN 1018-ZA07; 1018-ZA08


U.S. Fish and Wildlife Service Mitigation Policy and Endangered 
Species Act Compensatory Mitigation Policy

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of final policies.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
revised Mitigation Policy and the Endangered Species Act (ESA) 
Compensatory Mitigation Policy. The revised Mitigation Policy 
establishes fundamental mitigation principles and provides a framework 
for applying a landscape-scale approach to achieve, through application 
of the mitigation hierarchy, no net loss of resources and their values, 
services, and functions resulting from proposed actions. The ESA 
Compensatory Mitigation Policy adopts the mitigation principles 
established in the Mitigation Policy, establishes compensatory 
mitigation standards, and provides guidance for the application of 
compensatory mitigation through implementation of the ESA.

DATES: The policies are effective May 15, 2023.

ADDRESSES: The revised Mitigation Policy is available at https://www.fws.gov/policy/a1501fw2.pdf. The revised ESA Compensatory 
Mitigation Policy is available at https://www.fws.gov/policy/a1501fw3.pdf. In addition, both policies are available at https://www.regulations.gov in Docket No. FWS-HQ-ES-2021-0014.

FOR FURTHER INFORMATION CONTACT: Craig Aubrey, by mail at U.S. Fish and 
Wildlife Service, Division of Environmental Review, 5275 Leesburg Pike, 
Falls Church, VA 22041-3803; by email at [email protected]; or by 
telephone at 703-358-2442. Individuals in the United States who are 
deaf, deafblind, hard of hearing, or have a speech disability may dial 
711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point of contact in the United States.

SUPPLEMENTARY INFORMATION: 

Background

    Consistent with the mission of the Service and congressional 
direction through the Fish and Wildlife Coordination Act, as amended 
(16 U.S.C. 661-667(e)); the Endangered Species Act of 1973, as amended 
(ESA; 16 U.S.C. 1531 et seq.); and similar environmental statutes, the 
Service has the responsibility to ensure that impacts to fish, 
wildlife, plants, and their habitats are considered when actions are 
planned, and that those impacts are mitigated so that these resources 
may provide a continuing benefit to the American people.
    The purpose of the revised Mitigation Policy is to provide guidance 
to Service personnel in formulating and delivering recommendations and 
requirements to action agencies and project proponents so that they may 
avoid, minimize, and compensate for action-caused impacts to species 
and their habitats, and uses thereof. The revised Mitigation Policy 
establishes fundamental mitigation principles and provides a framework 
for applying a landscape-scale approach to achieve, through application 
of the mitigation hierarchy, no net loss of resources and their values, 
services, and functions resulting from proposed actions. The primary 
intent of the revised Mitigation Policy is to apply mitigation in a 
strategic manner that ensures an effective linkage with conservation 
strategies at appropriate landscape scales.
    The purpose of the ESA Compensatory Mitigation Policy is to provide 
guidance to Service personnel as they seek to mitigate losses to 
endangered and threatened species and their habitats resulting from 
proposed actions to further the purposes of the ESA. The ESA 
Compensatory Mitigation Policy adopts the mitigation principles 
established in the revised Mitigation Policy, establishes compensatory 
mitigation standards, and provides guidance for the application of 
compensatory mitigation through implementation of the ESA. It covers 
all compensatory mitigation mechanisms, including, but not limited to, 
proponent-responsible mitigation, conservation banking, and in-lieu fee 
programs, and all species and habitats protected under the ESA for 
which the Service has jurisdiction.

Prior Policies

    The Service's original Mitigation Policy (46 FR 7644, January 23, 
1981) has guided our recommendations on mitigating the adverse impacts 
of land and water developments on fish, wildlife, plants, and their 
habitats since 1981. The revisions reflected in the revised Mitigation 
Policy are motivated by changes in conservation challenges and 
practices since 1981, including accelerating loss of habitats, effects 
of climate change, and advances in conservation science. The revised 
Mitigation Policy integrates all authorities that allow the Service to 
recommend or require mitigation of impacts to fish and wildlife 
resources, and other resources identified in statute, during 
development processes. It is intended to serve as a single umbrella 
policy under which the Service may issue more detailed policies or 
guidance documents covering specific activities in the future.
    The ESA Compensatory Mitigation Policy serves as the Service's 
comprehensive treatment of compensatory mitigation under the authority 
of the ESA. The ESA Compensatory Mitigation Policy clarifies guidance 
in the Service's ``Guidance for the Establishment, Use, and Operation 
of Conservation Banks,'' published in the Federal Register on May 8, 
2003 (68 FR 24753), and ``Guidance on Recovery Crediting for the 
Conservation of Threatened and Endangered Species,'' published in the 
Federal Register on July 31, 2008 (73 FR 44761).
    We previously published a Mitigation Policy (81 FR 83440, November 
21, 2016) and an ESA Compensatory

[[Page 31001]]

Mitigation Policy (81 FR 95316, December 27, 2016). We later requested 
public comment on portions of those policies, specifically comments on 
the policies' mitigation planning goals (82 FR 51382, November 6, 
2017). We subsequently withdrew the Mitigation Policy that was 
published in 2016 and reinstated the Mitigation Policy that was 
published in 1981 (83 FR 36472, July 30, 2018). We also withdrew the 
ESA Compensatory Mitigation Policy that was published in 2016 and 
reinstated all policies or guidance documents that were superseded by 
that policy (83 FR 36469, July 30, 2018).
    In our withdrawal notices in 2018, the Service concluded, in light 
of national policy direction reflected in Executive Order (E.O.) 13783, 
``Promoting Energy Independence and Economic Growth'' (82 FR 16093, 
March 28, 2017); the comments received by the Service; and concerns 
regarding the legal and policy implications of compensatory mitigation 
with a mitigation planning goal of net conservation gain, that it was 
no longer appropriate to retain references to a goal of net 
conservation gain within the policies. We further concluded that, 
because the goal of net conservation gain was so prevalent throughout 
the policies, this concern should be resolved by withdrawing the 
policies.

Development of the Revised Policies

    E.O. 13990, ``Protecting Public Health and the Environment and 
Restoring Science to Tackle the Climate Crisis'' (86 FR 7037, January 
20, 2021), subsequently rescinded E.O. 13783 and called for an 
immediate review of agency actions taken between January 20, 2017, and 
January 20, 2021. Consistent with E.O. 13990, the Service evaluated 
whether to revise and reissue versions of the mitigation policies. The 
Service considered input we received during three separate public 
comment periods related to the 2016 mitigation policies. The initial 
public comment periods solicited input on the proposed revisions to the 
Mitigation Policy (81 FR 12380, March 8, 2016), and on the draft ESA 
Compensatory Mitigation Policy (81 FR 61031, September 2, 2016). We 
later requested additional public comment on the mitigation planning 
goal within both mitigation policies that had already been finalized 
(82 FR 51382, November 6, 2017). The documents, comments, and process 
related to prior revisions are not summarized here, but may be viewed 
within docket number FWS-HQ-ES-2015-0126 (mitigation) and docket number 
FWS-HQ-ES-2015-0165 (compensatory mitigation) on https://www.regulations.gov.
    One of the main concerns with the 2016 policies was the inclusion 
of a mitigation planning goal of net conservation gain. Based on public 
comments, changes in Executive Orders, and policy considerations, the 
Service has removed reference to a mitigation planning goal of net 
conservation gain from both policies. We have also added information 
clarifying that the Service's mitigation planning goal is to maintain 
the current status of affected resources (i.e., no net loss) and that 
the Service's mitigation recommendations and requirements should focus 
on important, scarce, or sensitive resources and be consistent with 
applicable statutory authorities and the responsibilities of action 
proponents.
    In the 2018 notice to withdraw the policies, the Service cited 
concerns regarding inconsistencies between the policies and concepts in 
the opinions of Koontz v. St. Johns River WMD, Nollan v. California 
Coastal Commission, and Dolan v. City of Tigard, which identified 
appropriate sideboards regarding the links between an action and 
compensatory mitigation to offset the effects of that action. Those 
opinions call for an ``essential nexus'' between an action's effects 
and compensatory mitigation, as well as ensuring that mitigation is 
proportional to the action's effect. The Service has incorporated those 
concepts in the revised policies. The Service will implement these 
mitigation policies in a manner that is consistent with the Koontz case 
and any other relevant court decisions. Specifically, we have added 
``nexus and proportionality'' as a fundamental mitigation principle for 
both policies to reinforce that appropriate mitigation measures must 
have a clear connection with the anticipated effects of the action and 
be commensurate with the scale and nature of those effects.
    In light of the rescission of E.O. 13783, the changes to the 
policies described above, and the need for the Service to have modern 
mitigation policies, we again finalize the revised Mitigation Policy 
and the ESA Compensatory Mitigation Policy.
    The Mitigation Policy and ESA Compensatory Mitigation Policy are 
non-binding, do not establish legally binding rules, and are internal 
Service policies intended only to improve the internal management of 
the Service.

National Environmental Policy Act

    We have analyzed the final revised policies in accordance with the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and 
the Council on Environmental Quality's regulations for implementing the 
procedural provisions of NEPA (40 CFR parts 1500-1508). Issuances of 
policies, directives, regulations, and guidelines are actions that may 
generally be categorically excluded under NEPA (43 CFR 46.210(i)). The 
policies fit within this category and are therefore excluded from 
further analysis.

Authority

    The multiple authorities for this action include the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.); Fish and 
Wildlife Coordination Act, as amended (16 U.S.C. 661-667(e)); and 
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-10341 Filed 5-12-23; 8:45 am]
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