Proposed Revisions to the U.S. Fish and Wildlife Service Mitigation Policy, 12379-12403 [2016-05142]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 45 (Tuesday, March 8, 2016)]
[Notices]
[Pages 12379-12403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05142]



[[Page 12379]]

Vol. 81

Tuesday,

No. 45

March 8, 2016

Part IV





 Department of the Interior





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Fish and Wildlife Service





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 Proposed Revisions to the U.S. Fish and Wildlife Service Mitigation 
Policy; Notice

Federal Register / Vol. 81 , No. 45 / Tuesday, March 8, 2016 / 
Notices

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

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


Proposed Revisions to the U.S. Fish and Wildlife Service 
Mitigation Policy

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Announcement of draft policy; request for public comment.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce 
proposed 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. We request comments, information, and 
recommendations from governmental agencies, Indian Tribes, the 
scientific community, industry groups, environmental interest groups, 
and any other interested parties.

DATES: We will accept comments from all interested parties until May 9, 
2016. Please note that if you are using the Federal eRulemaking Portal 
(see ADDRESSES below), the deadline for submitting an electronic 
comment is 11:59 p.m. Eastern Standard Time on this date.

ADDRESSES: Document Review: The draft policy is available for review at 
https://www.regulations.gov, under docket number FWS-HQ-ES-2015-0126.
    General Comments: You may submit comments by one of the following 
methods:
     Federal eRulemaking Portal: https://www.regulations.gov. In 
the Search box, enter the Docket number for the proposed policy, which 
is FWS-HQ-ES-2015-0126. You may enter a comment by clicking on the 
``Comment Now!'' button. Please ensure that you have found the correct 
document before submitting your comment.
     U.S. mail or hand delivery: Public Comments Processing, 
Attn: Docket No. FWS-HQ-ES-2015-0126; Division of Policy, Performance 
and Management; U.S. Fish and Wildlife Service; 5275 Leesburg Pike, 
ABHC-PPM; Falls Church, VA 22041-3803.
    We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Request for Information below for more information).

FOR FURTHER INFORMATION CONTACT: Jason Miller, U.S. Fish and Wildlife 
Service, Branch of Conservation Planning Assistance, 5275 Leesburg 
Pike, Falls Church, VA 22041-3803, telephone 703-358-1756.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), announce proposed revisions to our Mitigation Policy 
(January 23, 1981; 46 FR 7644-7663), 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.
    The revised policy integrates all authorities that allow the 
Service to recommend or 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.

Background

    The U.S. Fish and Wildlife Service (Service) is revising its 1981 
Mitigation Policy (1981 Policy), which has guided Service 
recommendations on mitigating the adverse impacts of land and water 
developments on fish, wildlife, plants, and their habitats, and uses 
thereof since 1981. 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, 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) 
Broaden its scope to address all resources for which the Service has 
authorities to recommend or require 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. The policy proposed herein 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

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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, impacted 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 policy proposed herein 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.

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, 
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 revised 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, as 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 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 and requirements during the review of 
actions based on numerous authorities related to specific covered plant 
and animal species, habitats, and broader ecological functions. Our 
authority to engage actions that may affect these resources extends to 
all U.S. States and territories, on public and on private lands. 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 over-arching 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. 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 71 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% 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

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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 decision-making under uncertainty) 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 requirements and 
recommendations 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 may require the inclusion 
of measures that are not habitat based to address certain species-
specific impacts.

Applicability to the Endangered Species Act

    The Service's 1981 mitigation policy did not apply to the 
conservation of species listed as threatened or endangered under the 
Endangered Species Act (ESA). Excluding listed species from the 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, as broadly defined in this policy, is an essential 
component of achieving the overarching purpose of the ESA, which is to 
conserve listed species and the ecosystems upon which they depend. 
Effective mitigation can contribute to the recovery of listed species 
or prevent further declines in populations and habitat resources that 
would otherwise slow or impede recovery of listed species.
    The 1982 amendments to the ESA created incidental take permitting 
provisions for non-Federal actions (section 10(a)(1)(B)) with specific 
requirements (sections 10(a)(2)(A)(ii) and 10(a)(2)(B)(ii)) for 
mitigating impacts to listed species to the maximum extent practicable, 
and amended section 7(b) to include an incidental take statement 
provision for Federal agency actions that do not jeopardize the 
continued existence of listed species or result in the destruction or 
adverse modification of critical habitat. These amendments provide a 
legal means by which non-Federal and Federal actions are exempted from 
the prohibition against take in section 9 for endangered species and 
from comparable prohibitions adopted by regulation under section 4(d) 
for threatened species.
    Mitigation, as broadly defined in this policy, does not relieve an 
action proponent of the obligation to secure exemption for unavoidable 
taking that results incidentally from otherwise lawful activities. 
Nevertheless, mitigation is an integral component of the section 7 and 
10 processes by addressing the conservation needs of listed species 
within the context of the action and the impacts of the action on the 
species.
    Under ESA section 7 the Service has consistently acknowledged and 
accepted or applied mitigation in the form of:
     Conservation measures voluntarily included as part of a 
proposed Federal action that avoid, minimize, rectify, reduce, or 
compensate for unavoidable (also known as residual) impacts to a listed 
species;
     components of a reasonable and prudent alternative to 
avoid jeopardizing the continued existence of listed species or 
destroying or adversely modifying designated critical habitat; and
     reasonable and prudent measures within an incidental take 
statement to minimize the impacts of taking on the affected listed 
species.
    This policy encourages the Service to utilize a broader definition 
of mitigation

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where allowed by law. Under section 10(a)(2), a non-Federal applicant 
is required to take steps ``to minimize and mitigate such impacts . . . 
to the maximum extent practicable,'' among other requirements to 
receive an incidental take permit. In addition, issuance of an 
incidental take permit under section 10 is a Federal action subject to 
the consultation requirements of section 7(a)(2).
    This policy serves as over-arching 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, including those covered by the ESA. We intend to adapt 
Service program-specific policies, handbooks, and guidance documents, 
consistent with applicable statutes, to integrate the spirit and intent 
of this policy. For example, we anticipate publishing a Service policy 
specific to compensatory mitigation under the ESA that will align with 
the guidance described herein while providing additional operational 
detail.

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

1. Purpose

    This policy is applicable to all actions for which the U.S. Fish 
and Wildlife Service (Service) has specific authority to recommend or 
require the mitigation of impacts to fish, wildlife, plants, and their 
habitats. This policy provides guidance for Service personnel. The 
policy allows for variations appropriate to action- and resource-
specific circumstances. It will help to ensure consistent and effective 
recommendations by outlining policy for determining the levels of 
mitigation needed and the various methods for accomplishing mitigation. 
It will help align Service-recommended mitigation with conservation 
objectives for affected resources and the strategies for achieving 
those objectives at ecologically relevant scales. It 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 resources with other action features 
and purposes. This policy supersedes the Fish and Wildlife Service 
Mitigation Policy (46 FR 7644-7663) published in 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
 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.

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 above. This 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 engage actions on an expanded basis under appropriate 
authorities.
    The types of resources for which the Service is authorized to 
recommend or require 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 Sec.  
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

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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 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.). 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 
decision-making process under NEPA.

3.5. Financial Assistance Programs and Mitigation

    The Service's 60 financial assistance programs 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, 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.
    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 losses. 
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. 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

[[Page 12385]]

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, and other stakeholders to design mitigation strategies that 
will prevent fragmented landscapes and restore core areas and 
connectivity necessary to sustain species.
    d. 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.
    e. 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.
    f. 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 implementation 
assurances, including financial, be in place when necessary to assure 
the development, maintenance, and long-term viability of the mitigation 
measure.
    g. Effective compensatory mitigation. The Service will recommend or 
require that compensatory mitigation be implemented before the impacts 
of an action occur and be additional to any existing or foreseeably 
expected conservation efforts planned for the future. To ensure 
consistent implementation of compensatory mitigation, the Service will 
support 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 
decision-making 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 requires or recommends 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 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. Advance 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. Follow-up. 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 requirements and recommendations into conservation

[[Page 12386]]

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.
    Whenever required or 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);
     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 
impacted 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.
Advance Mitigation Planning at Larger Scales
    The Service supports the planning and implementation of advance 
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. Advance mitigation plans should complement or tier 
from existing conservation plans relevant to the affected resources 
(e.g., recovery plans, habitat conservation plans, or non-governmental 
plans). Effective and efficient advance mitigation identify 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 non-governmental plans that 
identify such priorities.
    Developing advance mitigation should involve stakeholders in a 
transparent process for defining objectives and the means to achieving 
those objectives. Planning for advance 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. Advance mitigation 
plans, not limited to

[[Page 12387]]

those developed under a programmatic NEPA decision-making process or a 
Habitat Conservation Plan process, will provide efficiencies for 
project-level Federal actions and will also better address potential 
cumulative impacts.
    Procedurally, advance 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 advance 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. The Service will:
    a. Coordinate activities with the appropriate Federal and State 
agencies, tribes, and other stakeholders who have responsibilities for 
fish and wildlife resources when developing mitigation recommendations 
for resources of concern to those entities;
    b. to consider resources and plans made available by State, local, 
and tribal governments and other Federal agencies;
    c. seek to apply compatible approaches and avoid duplication of 
efforts with those same entities;
    d. collaborate with Federal and State agencies, tribes, 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 decision-making 
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.

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. Mitigation is the general label for 
all measures implemented as part of an action to avoid, minimize, and/
or compensate for its predicted impacts.
    The Service should design mitigation measures to achieve the 
mitigation goal of net gain, as required or appropriate, 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 decision-
makers, action proponents, and the public to compare present and 
predicted future conditions for affected resources;
    b. measure adverse and beneficial effects using common metrics to 
determine mitigation measures necessary to achieve the mitigation 
policy goal for the affected resources;

[[Page 12388]]

    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. Always, however, one or more species of conservation interest 
to the Service is 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,

[[Page 12389]]

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.
    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, 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 on-site 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 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, Follow-up.

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

[[Page 12390]]

(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.
    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. In affected areas, maintain or replace equipment and structures 
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.
    The Service encourages proponents to 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.
    The mechanisms for delivering compensatory mitigation differ 
according to: (1) Who is ultimately

[[Page 12391]]

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 (on-site) 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. The Service 
will ensure the application of equivalent ecological, procedural, and 
administrative standards for all compensatory mitigation mechanisms. As 
outlined by DM 6.6 C, this means that compensatory mitigation measures 
will maximize the benefit to impacted resources; implement and earn 
credits in advance of impacts; reduce risk to achieving effectiveness; 
use transparent methodologies; and use mitigation measures with 
equivalent standards that clearly identify responsible parties and that 
establish monitoring. Mitigation options delivered through any 
compensatory mitigation mechanism must incorporate, address, or 
identify the following that are intended to ensure successful 
implementation and durability:
    a. Type of resource(s) and/or its values(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.
    Multiple mechanisms may be used to provide 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 on-site or off-site 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 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 non-profit 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 5.7.2 for discussion of the Service's preference for 
compensatory mitigation that occurs prior to impacts.
    Research and education, although important to the conservation of 
many resources, are not typically considered compensatory mitigation. 
This is because they do not, by themselves, replace impacted resources 
or adequately compensate for adverse effects to species or habitat. In 
rare circumstances, research or education that can be linked directly 
to threats to the resource and provide a quantifiable benefit to the 
resource may be included as part of a mitigation package. These 
circumstances may include: (a) When the major threat to a resource is 
something other than habitat loss; (b) when the Service can reasonably 
expect the benefits of applying the research or education results to 
more than offset the impacts; (c) where there is an adaptive management 
approach wherein the results/recommendations of the research will then 
be applied to improve mitigation of the impacts of the project or 
proposal; or (d) there are no other reasonable options for mitigation.

5.7. Recommendations

    Consistent with applicable authorities, the policy's fundamental 
principles, and the mitigation planning

[[Page 12392]]

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 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

    Unless action-specific circumstances warrant otherwise, the Service 
will observe the following preferences in providing mitigation 
recommendations or requirements:
    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. 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 wide-
spread 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 and requirements 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 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 of the mitigation land is commensurate

[[Page 12393]]

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, the Service will recommend 
against such uses.

5.8. Documentation

    The Service should advise action proponents and decision-making 
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.
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 
required or 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 the Service 
believes 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 (high, moderate, low) 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. Follow-up

    The Service encourages, supports, and will initiate, whenever 
practicable, 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.

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

[[Page 12394]]

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.
    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, 
tribal, State, 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 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 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

[[Page 12395]]

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 decision making, 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, 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 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; removal of nests for resource 
development and recovery (golden eagles, only); and nonpurposeful 
(incidental) take.
    The regulations for eagle nest take permits and eagle 
nonpurposeful take permits explicitly provide for mitigation, 
although the form and methods of mitigation are not specified, nor 
do the regulations contain criteria stipulating thresholds for when 
compensatory mitigation is required. The Eagle Act requires 
mitigation in the form of avoidance and minimization for these 
permits by restricting permitted take to circumstances where take is 
``necessary.'' Though eagle habitat is not directly protected by the 
Eagle Act, the statute and implementing regulations allow the 
Service to require habitat preservation and/or enhancement as 
compensatory mitigation for eagle take.

[[Page 12396]]

    Eagle take permits of all types are also subject to the 
requirement that any take that would exceed take thresholds 
established within geographic eagle management units (EMUs) must be 
offset by mitigation that will essentially replace each eagle taken. 
For example, if, under an eagle nonpurposeful take permit, a project 
is expected to kill an average of three eagles over a 5-year period, 
and take thresholds have been met in that EMU, the permittee must 
provide compensatory mitigation that prevents three eagles from 
being taken by another activity. At the time this Appendix A is 
being written, take thresholds for golden eagles are set at zero 
throughout the United States because golden eagle populations appear 
to be stable but not increasing, and as such unable to withstand 
additional take while still maintaining current numbers of breeding 
pairs over time. Accordingly, all permits for golden eagle take that 
would result in cumulative take within the EMU at levels above the 
2009 baseline must incorporate compensatory mitigation. Permittees 
may be required to provide compensatory mitigation designed to 
improve conditions for eagles including habitat preservation or 
enhancement of prey base.

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 secure 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 (Corp 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 insure 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 mitigation 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. The 
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 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. 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

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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 Endangered Species Act, 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'' (22.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; 
restore and enhance the habitat of migratory birds; and prevent or 
abate 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 Impact 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 decision-
making 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 
American'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, that 
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) implicitly provides for mitigation by requiring 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.
    In addition, 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 
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) 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 affecting 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. In addition, ITRs include requirements 
pertaining to the monitoring and reporting of such takings. Under 
the ITRs, a U.S. citizen may request

[[Page 12398]]

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 1 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. The IHA prescribes permissible methods of 
taking by harassment and includes other means of achieving 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. Proponents may adopt these recommendations as components of 
proposed actions. However, such adoption itself does not constitute 
full compliance with the MMPA.

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 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 decision making processes by considering impacts of their 
proposed actions and reasonable alternatives. Agencies disclose 
findings through Environmental Assessments 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

    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) (Refuge Mitigation Policy) 
published in 1999 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 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)

    This policy applies to actions for which the Service is a 
participating bureau, supporting the Department of the Interior, 
during activities associated with assessment of injuries to natural 
resources caused by oil spills or releases of hazardous materials, 
under the Oil Pollution Act (33 U.S.C. 2701 et seq.) and the 
Comprehensive Environmental Response, Compensation and Liability Act 
(42 U.S.C. 9601), 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 the injuries to determine appropriate 
restoration to compensate the public for losses of those resources 
or their services.
    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)).
    The NRDAR program may impose constraints associated with the 
Service's Mitigation Policy. Jurisdiction over natural resources 
varies by agency, and the restoration portion of a given settlement 
is often resolved jointly with other Federal/

[[Page 12399]]

State/tribal trustees, thus requiring their approval of allocation 
of funds for restoration projects. This policy will be used by the 
Service to guide restoration projects that benefit Service resources 
and as one mechanism to direct restoration planning toward goals 
common to other trustees. Thus, the policy maintains the flexibility 
to implement the appropriate restoration to compensate for the 
injured resources under the jurisdiction of multiple government 
agencies. This policy does not seek to inhibit discussions aimed at 
achieving settlement, rather it seeks to offer flexibility while 
defining compensatory projects 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 https://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. Pittman-Roberts Wildlife Restoration Act; 16 U.S.C. 669-669k
11. Dingell-Johnson Sport Fish Restoration Act; 16 U.S.C. 777-777n, 
except 777 e-1 and g-1
12. 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. Natural Resource Damage Assessments (OPA), 15 CFR part 990, 33 
U.S.C. 2701 et seq.
8. Natural Resource Damage Assessments (CERCLA), 43 CFR part 11, 42 
U.S.C. 9601
9. 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.

D. Executive Orders

1. Executive Order 13186, Responsibilities of Federal Agencies to 
Protect Migratory Birds
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, Environmental Justice for Low Income and 
Minority 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. Memorandum, ``Appropriate Use of Mitigation and Monitoring and 
Clarifying the Appropriate Use of Mitigated Findings of No 
Significant Impact'' (January 14, 2011)

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 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. Service Climate Change Adaptation Policy, 056 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 (https://www.fws.gov/migratorybirds/PartnershipsAndIniatives.html)

Appendix B. Service Mitigation Policy and NEPA

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). It 
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

[[Page 12400]]

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 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 
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), 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.  
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 mitigation 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 analyses can establish standards for 
consideration and implementation of mitigation, and can more 
effectively address cumulative impacts. To ensure that landscape-
scale mitigation planning is effectively implemented and meets 
conservation goals, the Service should seek and consider 
collaborative opportunities to conduct programmatic NEPA decision-
making processes on Service actions that are similar in timing, 
impacts, alternatives, resources, and mitigation. 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.

C. 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.

[[Page 12401]]

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.

D. Integrating Mitigation Policy Into the NEPA Process

    When the Service is the lead or co-lead Federal agency for NEPA 
compliance, the mitigation 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 the mitigation policy in Service decision 
making 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 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 decision makers with a choice between a 
``conservation alternative'' and a ``no conservation alternative.''

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 decision making supported by an 
Environmental Impact Statement. Determining significance considers 
both the context and intensity of effects. For resources covered by 
this mitigation 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 on-site 
or off-site 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: Measures to achieve 
outcomes of no net loss or net gain; the types of mitigation 
measures adopted for each evaluation species or suite of species; 
the spatial and temporal application and duration of the measures; 
compliance and effectiveness monitoring; criteria for remedial 
action; and unmitigable residual effects.

Appendix C. Compenstory 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 60 financial assistance programs has 
at least one statutory authority, which are listed in the Catalog of 
Federal Domestic Assistance at 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. 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

[[Page 12402]]

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 60 financial assistance programs. If the 
Service shares responsibility for approving or administering an 
award with another entity, the 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? Mitigation issues mostly occur in the match (cost share) 
proposed by applicants. 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.
    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 specifically authorized 
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 Service 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 specifically authorized 
for the purpose of mitigation.
    c. The work 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 the regulations and this section 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 can approve or administer funding for a proposed 
financially assisted project that satisfies a compensatory 
mitigation requirement of a State, tribal, or local government, or 
has match that originated from such a requirement.
    2. Satisfying this mitigation requirement with Federal financial 
assistance must not be contrary to any law, regulation, or policy of 
the State, tribal, or local government as applicable.
    H. Can a mitigation proposal be located on land acquired under a 
Service financial-assistance award?
    1. A mitigation proposal can be located on land acquired under a 
Service approved or administered financial-assistance award only if:
    a. The land will continue to be used for its authorized purpose 
as long as it is needed for that purpose.
    b. The mitigation proposal will provide environmental benefits 
over and above the terms of the financial-assistance award(s) that 
acquired, restored, or enhanced the property.
    2. 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:

[[Page 12403]]

    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.

Request for Information

    We intend that a final policy will consider information and 
recommendations from all interested parties. We, therefore, invite 
comments, information, and recommendations from governmental agencies, 
Indian Tribes, the scientific community, industry groups, environmental 
interest groups, and any other interested parties. All comments and 
materials received by the date listed above in DATES will be considered 
prior to the approval of a final policy.
    In addition to more general comments and information, we ask that 
you comment on the following specific aspects of the policy:
    (1) Principles established by the policy in section 4, including 
the Service's mitigation planning goal of a net conservation gain, or 
at a minimum, no net loss, i.e., maintaining the current status of 
affected resources.
    (2) Integration of mitigation planning into a broader ecological 
context with applicable landscape-level conservation planning, by 
steering mitigation efforts in a manner that will best contribute to 
achieving conservation objectives.
    (3) The integration of all applicable authorities that allow the 
Service to recommend or require mitigation within a single mitigation 
policy.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.

National Environmental Policy Act (NEPA)

    We have analyzed the proposed policy in accordance with the 
criteria of the National Environmental Policy Act (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). We have determined that the proposed policy 
includes substantive revisions to the 1981 Mitigation Policy that are 
not purely administrative in nature and cannot be categorically 
excluded from NEPA documentation requirements consistent with 40 CFR 
1508.4 and 43 CFR 46.210(i). In addition, this action may have the 
potential to trigger an extraordinary circumstance, as outlined in 43 
CFR 46.215. Therefore, we announce our intent to prepare an 
environmental assessment (EA) pursuant to the National Environmental 
Policy Act (NEPA) of 1969, as amended. We request 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. This notice provides an opportunity for 
input from other Federal and State agencies, local government, Native 
American Tribes, nongovernmental organizations, the public, and other 
interested parties.

Authors

    The primary authors of the draft policy are the following staff 
members of the U.S. Fish and Wildlife Service: Karen Cathey of the 
Southwest Regional Office; Deborah Mead and Jason Miller (team leader) 
of the Ecological Services Program, Headquarters Office; Doreen 
Stadtlander of the Carlsbad Fish and Wildlife Office; Diana Whittington 
of the Migratory Birds Program, Headquarters Office; Jerry Ziewitz of 
the Southeast Regional Office; and other Headquarters, Regional, and 
field contributors. Primary support for policy development was provided 
by Cheryl Amrani of the Ecological Services Program, Headquarters 
Office.

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.

James W. Kurth,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-05142 Filed 3-7-16; 8:45 am]
 BILLING CODE 4333-55-P