Endangered and Threatened Wildlife and Plants; Endangered Species Act Compensatory Mitigation Policy, 95316-95349 [2016-30929]
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Background
both the public and private sectors to
work with us to conserve species and
the ecosystems on which they depend.
This collaborative effort includes
conservation of endangered and
threatened (listed) species and their
designated critical habitat protected
under the Endangered Species Act of
1973, as amended (ESA; 16 U.S.C. 1531
et seq.), and other species proposed for
listing or at-risk of being listed. The
purposes of the ESA are to provide a
means whereby the ecosystems upon
which listed species depend may be
conserved, and to provide a program for
the conservation of such species. The
Service and National Oceanic and
Atmospheric Administration’s National
Marine Fisheries Service share
responsibilities for administering the
ESA. However, this policy only applies
to the Service and species under our
jurisdiction.
This policy is the first comprehensive
treatment of compensatory mitigation
under authority of the ESA to be issued
by the Service. Both the 1995
interagency policy on the establishment
and operation of wetland mitigation
banks (60 FR 58605, November 28,
1995) and the 2000 interagency policy
on the use of in-lieu fee arrangements
(65 FR 66914, November 7, 2000) are
specific to wetland mitigation, but
provide guidance that is generally
applicable to conservation banking and
in-lieu fee programs for species
associated with wetlands or uplands.
These interagency policies were
superseded by the Environmental
Protection Agency—U.S. Army Corps of
Engineers 2008 Compensatory
Mitigation Rule for Losses of Aquatic
Resources (73 FR 19594, April 10,
2008). In 2003, the Service issued
guidance on the establishment, use, and
operation of conservation banks (68 FR
24753, May 8, 2003). In 2008, we issued
recovery crediting guidance (73 FR
44761, July 31, 2008). This ESA
Compensatory Mitigation Policy
clarifies Service expectations regarding
all compensatory mitigation
mechanisms recommended or
supported by the Service when
implementing the ESA, including, but
not limited to, conservation banks, inlieu fee programs, habitat credit
exchanges, and permittee-responsible
mitigation.
The mission of the U.S. Fish and
Wildlife Service (Service or USFWS) is
working with others to conserve,
protect, and enhance fish, wildlife, and
plants and their habitats for the
continuing benefit of the American
people. As part of our mission, we
continually seek opportunities to engage
Purpose and Importance of the Policy
The primary intent of the policy is to
provide Service personnel with
direction and guidance in the planning
and implementation of compensatory
mitigation, primarily through
encouraging strategic planning at the
landscape level and setting standards
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[Docket No. FWS–HQ–ES–2015–0165;
FXES11140900000–
178nmdash;FF09E33000]
Endangered and Threatened Wildlife
and Plants; Endangered Species Act
Compensatory Mitigation Policy
Fish and Wildlife Service,
Interior.
ACTION: Notice of final policy.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service or USFWS),
announce the final Endangered Species
Act (ESA) Compensatory Mitigation
Policy. The new policy steps down and
implements recent Executive Office,
Department of the Interior, and Service
mitigation policies that reflect a shift
from project-by-project to landscapescale approaches to planning and
implementing compensatory mitigation.
The new policy is established to
improve consistency and effectiveness
in the use of compensatory mitigation as
recommended or required under the
ESA. The ESA Compensatory Mitigation
Policy covers permittee-responsible
mitigation, conservation banking, inlieu fee programs, and other third-party
mitigation mechanisms, and stresses the
need to hold all compensatory
mitigation mechanisms to equivalent
and effective standards.
DATES: This policy is effective on
December 27, 2016.
ADDRESSES: Comments and materials
received, as well as supporting
documentation used in the preparation
of this policy, including an
environmental assessment, are available
on the Internet at https://
www.regulations.gov at Docket Number
FWS–HQ–ES–2015–0165.
FOR FURTHER INFORMATION CONTACT:
Craig Aubrey, U.S. Fish and Wildlife
Service, Division of Environmental
Review, 5275 Leesburg Pike, Falls
Church, VA 22041–3803; telephone
703–358–2442. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Relay
Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
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that mitigation programs and projects
must meet to achieve conservation that
is effective and sustainable.
Compensatory mitigation is defined in
this policy as compensation 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 (part 600, chapter 6 of the
Departmental Manual (600 DM 6.4C)).
While this policy addresses only the
role of compensatory mitigation under
the ESA, avoidance and minimization of
impacts retain their central role in both
the section 7 and section 10 processes.
Guidance on the application of the
mitigation hierarchy is provided in our
Mitigation Policy (81 FR 83440,
November 21, 2016), regulations
implementing the ESA, and other
policies and guidance documents
specific to various sections of the ESA.
Alignment of the Policy With Existing
Directives
By memorandum (80 FR 68743,
November 6, 2015), the President
directed all Federal agencies that
manage natural resources, ‘‘to avoid and
then minimize harmful effects to land,
water, wildlife, and other ecological
resources (natural resources) caused by
land- or water-disturbing activities, and
to ensure that any remaining harmful
effects are effectively addressed,
consistent with existing mission and
legal authorities.’’ This policy is
consistent with the Presidential
memorandum (‘‘Mitigating Impacts on
Natural Resources From Development
and Encouraging Related Private
Investment’’) issued November 3, 2015;
the Department of the Interior
(Department) Secretarial Order 3330
entitled, ‘‘Improving Mitigation Policies
and Practices of the Department of the
Interior,’’ issued October 31, 2013; the
new Interior Departmental Manual
Chapter on Landscape-Scale Mitigation
Policy, 600 DM 6 (October 23, 2015);
and is intended to institute the policies
and procedures reflected in the guiding
principles on mitigation established by
the Department through the report to the
Secretary entitled, ‘‘A Strategy for
Improving the Mitigation Policies and
Practices of The Department of the
Interior,’’ issued in April 2014 (Clement
et al. 2014). These directives emphasize
a comprehensive landscape-scale
approach to planning and implementing
mitigation programs, and they also
include a mitigation goal to improve
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(i.e., ‘‘net gain’’) or, at a 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.
The mitigation principles set forth in
the above directives, including the
landscape scale approach and the goal
of ‘‘net gain,’’ have been adopted in both
the Service’s Mitigation Policy (81 FR
83440, November 21, 2016), and in this
policy. The landscape-scale approach to
mitigation is not a new concept. For
example, in 2013, the Service issued
mitigation guidance for two listed
songbirds in central Texas based on
recovery goals for these species. The
songbird mitigation guidance sets
minimum standards that must be met by
mitigation providers and encourages the
use of consolidated compensatory
mitigation in the form of permanent
protection and management of large,
contiguous patches of the species’
habitat. Proactive approaches, such as
this example, provide greater regulatory
certainty for project proponents and
encourage the establishment of
conservation banks and other mitigation
opportunities by mitigation sponsors for
use by project proponents.
The mitigation goal (i.e., ‘‘net gain’’
or, at a minimum, ‘‘no net loss’’) is not
necessarily based on habitat area, but on
numbers of individuals, size and
distribution of populations, the quality
and carrying capacity of habitat, or the
capacity of the landscape to support
stable or increasing populations of the
affected species after the action
(including all proposed conservation
measures) is implemented. In other
words, it is based on those factors that
determine the ability of the species to be
conserved.
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Benefits of the Policy
This policy sets forth standards for
compensatory mitigation that
implement the tenets in the directives
cited above and reflect the many lessons
learned by the Service during our more
than 40-year history implementing the
ESA, particularly sections 7 and 10 of
the ESA. The standards apply to all
compensatory mitigation mechanisms
(i.e., permittee-responsible mitigation,
conservation banks, in-lieu fee
programs, habitat exchanges, and other
third-party mitigation arrangements),
which are instrumental to achieving
effective compensatory mitigation on
the landscape and encouraging private
investment in compensatory mitigation.
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Adherence to the mitigation
principles and compensatory mitigation
standards identified in this policy will
achieve greater consistency,
predictability, and transparency in
implementation of the ESA. Service
offices are encouraged to work with
Federal agencies and other partners to
establish compensatory mitigation
programs based on landscape-scale
conservation plans, such as more
efficient, better coordinated, and
expedited regulatory processes, which
can provide project applicants with
incentives to mitigate their actions.
Compensatory mitigation programs and
projects designed and implemented in
accordance with the standards set forth
in this policy are expected to achieve
the best conservation outcomes for
listed, proposed, and at-risk species
through effective management of the
risks associated with compensatory
mitigation.
This policy encourages the use of
market-based compensatory mitigation
programs such as conservation banking
in conjunction with programmatic
approaches to ESA section 7
consultations and habitat conservation
plans (HCPs) that can be designed to
achieve a ‘‘no net loss’’ or a ‘‘net gain’’
mitigation goal. Consultations and HCPs
that establish a ‘‘program’’ to address
multiple, similar actions and/or impacts
to one or more species operate on a
larger landscape scale and expedite
regulatory processes. Market-based
mitigation programs improve regulatory
predictability, provide efficiencies of
scale, and incentivize private
investment in species conservation (Fox
and Nino-Murcia 2005). The benefits
provided by these mitigation programs
generally encourage Federal agencies
and incentivize applicants to develop
proposed actions that fully compensate
for adverse impacts to affected species
anticipated as a result of their actions.
Discussion
‘‘In enacting the ESA, Congress
recognized that individual species
should not be viewed in isolation, but
must be viewed in terms of their
relationship to the ecosystem of which
they form a constituent element.
Although the regulatory mechanisms of
the [ESA] focus on species that are
formally listed as endangered or
threatened, the purposes and policies of
the [ESA] are far broader than simply
providing for the conservation of
individual species or individual
members of listed species’’ (Conference
Report No. 97–835 House of
Representatives, September 17, 1982).
This comment, made over 30 years ago
during reauthorization of the ESA, is a
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reminder of the challenges still before
us.
Incorporating a landscape-scale
approach to development and
conservation planning, including
mitigation, that ensures a ‘‘net gain’’ or,
at a minimum, ‘‘no net loss’’ in the
status of affected resources, as directed
by the Presidential memorandum (80 FR
68743, November 6, 2015), helps
address the additive impacts that lead to
significant deterioration of resources
over time and has the potential to foster
recovery of listed species and avoid
listing of additional species.
As discussed later in this document,
the Service’s authority to require
compensatory mitigation under the ESA
is limited and differs under sections 7
and 10. However, we can more broadly
recommend the use of compensatory
mitigation to offset the adverse impacts
of actions under certain provisions of
the ESA and under other authorities,
such as the Fish and Wildlife
Coordination Act (16 U.S.C. 661 et seq.)
and the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.). This
policy encourages Service offices to
work with Federal agencies and
applicants, and to recommend or
require, if appropriate, the inclusion of
compensatory mitigation for all
unavoidable adverse impacts to listed,
proposed, and at-risk species and their
habitat anticipated as a result of any
proposed action. While this practice
currently exists for some species, it is
not used broadly throughout the
Service. Recommending, where
applicable, that Federal agencies use
their authorities to fully mitigate the
adverse effects of their actions (i.e.,
ensure ‘‘no net loss’’ in the status of
affected resources) is consistent with the
Presidential memorandum (80 FR
68743, November 6, 2015), the
Department’s and the Service’s
mitigation planning goals, and the
purposes of the ESA. Effective
mitigation that fully offsets the impacts
of an action prevents that action from
causing a decline in the status of
affected species (i.e., achieves ‘‘no net
loss’’).
Compensatory Mitigation Under
Sections 7 and 10 of the ESA
The additive effects of impacts
adversely affecting listed and at-risk
species as a result of many past and
current human-caused actions are
significant. The number of listed species
has increased from slightly more than
300 in 1982 (when the ESA was
reauthorized) to more than 1,500 by the
end of 2016. While some listed species
have been reclassified from endangered
to threatened (i.e., ‘‘downlisted’’) or
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removed from either the Federal List of
Endangered and Threatened Wildlife or
List of Endangered and Threatened
Plants (i.e., ‘‘delisted’’) within the last
40 years, the projected increase in
human population growth, increasing
demand on our natural resources
associated with this projected
population growth, accelerated climate
change, continued introductions of
invasive species, and other stressors are
putting even more species at risk and
compromising the essential functions of
ecosystems necessary to improve the
status and recover these species. We
cannot expect to change the status
trajectories of these species without a
commitment to responsible and
implementable standards for
accomplishing effective, sustainable
compensatory mitigation that fully
offsets the adverse impacts of actions to
species and other resources of concern.
Compensatory mitigation is a
conservation measure that can be used
within an appropriate context under
section 7 of the ESA to address
proposed actions that may result in
adverse impacts to listed species that
cannot be avoided. For example, under
section 7(a)(1) of the ESA, all Federal
agencies are required to use their
authorities to carry out conservation
programs for listed species. Federal
agencies may choose to develop and
implement section 7(a)(1) conservation
programs for listed species in
conjunction with section 7(a)(2)
consultation through a coordinated
program. The Service supports these
efforts, and we encourage Federal
agencies to coordinate with us on
development of such programs.
Compensatory mitigation can be used
under section 10(a)(1)(B) of the ESA
through HCPs developed to address
adverse impacts of non-Federal actions
on listed and other covered species that
cannot be avoided. Landscape-scale
HCPs developed for use by multiple
applicants to conserve multiple
resources are generally the most
efficient and effective approaches. The
Service supports these efforts and
encourages applicants, particularly local
and State agencies and organizations, to
coordinate with us on the development
of such plans.
Landscape-Level Approaches to
Compensatory Mitigation
Taking a landscape-level approach to
mitigation will assist the Service to
modernize our compensatory mitigation
procedures and practices and better
meet the challenges posed by the
growing human population’s demands
on our natural resources and changing
conditions such as those resulting from
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climate change. Conservation banking is
a market-based compensatory mitigation
mechanism based on a landscape
approach to mitigation that achieves
compensation for listed and other
resources of concern in advance of
project impacts. In-lieu fee programs
also establish compensatory mitigation
sites but generally not in advance of
impacts and often not through a marketbased approach. Habitat credit
exchanges are a relatively new marketbased compensatory mitigation
mechanism based on a clearinghouse
model that may or may not accomplish
mitigation in advance of project
impacts. All three of these mitigation
mechanisms use a landscape-level
approach to consolidate and locate
compensatory mitigation in areas
identified as conservation priorities.
These programs have designated service
areas within which proposed actions
that meet certain criteria may be
mitigated with Service approval. The
functions and services provided for
listed, proposed, and at-risk species by
these compensatory mitigation programs
are represented by credits. Credits are
used to offset impacts (often referred to
as debits). Most credit transactions
involve a permittee purchasing the
amount of credits needed to offset the
anticipated adverse effects of an action
from the mitigation project sponsor. The
Service must approve credit
transactions as to their conservation
value and appropriate application for
use related to any authorization or
permit issued under the ESA.
The conservation banking model is
generally perceived as successful at
achieving effective conservation
outcomes and, when used in
conjunction with section 7
consultations and section 10 HCPs, has
achieved notable regulatory efficiencies.
Results include ecological performance
that usually achieves ‘‘no net loss,’’ and
often a net benefit, in species
conservation; increased regulatory
predictability for Federal agencies and
applicants; and more efficient and better
coordinated permitting processes,
especially when multiple agencies with
overlapping regulatory jurisdictions are
involved.
Permittee-responsible mitigation for
many small to moderate impacts often
cannot provide adequate compensation
because it is often difficult to achieve
effective conservation on a small scale.
Small mitigation sites are often not
ecologically defensible, and it is often
difficult to ensure long-term
stewardship of these sites. Most
individual actions result in small or
moderate impacts to species and habitat,
yet the additive effects of these actions
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(often referred to as ‘‘death by a
thousand cuts’’), when not compensated
for, can have substantial adverse effects
on these resources by degrading the
environmental baseline and impairing
the potential for future actions. In
general, conservation banking, in-lieu
fee programs, and similar mitigation
mechanisms that consolidate
compensatory mitigation on larger
landscapes are designed to serve project
proponents with small to moderate
impact actions, are ecologically more
effective, and provide more economical
options to achieve compensation than
permittee-responsible mitigation.
Furthermore, larger landscape-scale
conservation programs with marketbased compensatory mitigation
opportunities create an economic
incentive for private landowners,
investors, and mitigation project
sponsors to participate in these
programs. The most robust programs
generate competition among mitigation
sponsors and may provide cost-effective
means for complying with natural
resource laws such as the ESA. To be
successful, these market-based and
other compensatory mitigation programs
must operate transparently and be held
to high standards that are uniformly
applied across all compensatory
mitigation mechanisms. Equally
important is transparency in the
implementation of the ESA and the
development of mitigation programs for
use by regulated communities.
Mitigation Defined
Because endangered and threatened
species are by definition in danger of
extinction or likely to become so in the
foreseeable future, avoiding,
minimizing, and compensating for
impacts to their populations are all
forms of mitigation that the Service may
consider when administering the ESA.
The Council on Environmental Quality
(CEQ) NEPA regulations (40 CFR
1508.20) state 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.
In 600 DM 6, the Department of the
Interior states that mitigation, as
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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.
Historically, those administering the
ESA have often used a condensed
mitigation sequence—avoid, minimize,
and compensate; or avoid, minimize,
and mitigate. This policy adopts the
Department’s definition of
compensatory mitigation: Compensation
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 (600 DM 6.4C). Throughout
this policy, ‘‘compensatory mitigation’’
or ‘‘compensation’’ is used in this broad
sense to include any measure that
would rectify, reduce, or compensate for
an impact to an affected resource. We
also use the term ‘‘minimize’’ in the
broad sense throughout this policy to
include any conservation measure,
including compensation, which would
lessen the impact of the action on the
species or other affected resource. We
recognize there is some overlap in the
use of these terms but, as a practical
matter, this use in practice is consistent
with the intent of the ESA. Information
regarding avoidance and observance of
the mitigation sequence can be found at
our Mitigation Policy (81 FR 83440,
November 21, 2016). This ESA
Compensatory Mitigation Policy covers
permittee-responsible mitigation,
conservation banking, in-lieu fee
programs, and all other compensatory
mitigation mechanisms.
Implementation
The Service will issue interim
guidance containing specific operational
steps to assist Service staff in
implementing this policy. This interim
guidance will be issued in the form of
a Director’s memorandum, which will
be used to develop a Service Manual
chapter at a later date. Throughout this
policy, the term ‘‘implementation
guidance’’ will be used when
referencing the interim guidance and
future Service Manual chapter.
Changes From the Draft Policy
This final policy differs from the draft
policy in a few substantive respects,
which we list below, and contains
editorial changes in response to
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comments we received that requested
greater clarity of expression regarding
various aspects of the policy’s purpose,
authorities, scope, general principles,
framework for formulating mitigation
measures, and definitions. The most
common editorial change to the final
policy addresses the concern that the
Service lacks authority to apply
compensatory mitigation to the ESA.
Reasons cited by the commenters for not
applying compensatory mitigation to the
ESA included: (a) The ESA does not
provide authority to require mitigation;
and (b) policy concepts such as ‘‘net
conservation gain’’ and a ‘‘landscape
approach’’ to conservation are
inconsistent with ESA statutory
authority and regulatory requirements.
This final policy adds new text to 2.
Authorities and Coordination that
identifies those circumstances under
which we have specific authority to
require, consistent with other applicable
laws and regulations, one or more forms
of compensatory mitigation for impacts
to federally listed species, proposed
species, and candidates as defined in
the ESA. This policy provides a
common framework for the Service
when identifying and implementing
compensatory mitigation measures
pursuant to the ESA. The policy,
however, cannot and does not alter or
substitute for the regulations
implementing the ESA. We summarize
below the few substantive changes from
the draft policy, listed by section.
Section 5 in the draft policy,
Application of Compensatory Mitigation
Under the ESA, was moved in its
entirety to replace section 4, as we felt
it more appropriate to discuss the
policy’s application under the ESA after
section 2. Authorities and Coordination,
and section 3. Scope. Section 4 in the
draft policy, Compensatory Mitigation
Standards, is now section 5 in this final
policy.
In section 5.1, Siting Sustainable
Compensatory Mitigation, this final
policy focuses on overarching
considerations and leaves specific
factors or examples to be explained in
the implementation guidance.
In section 6.1.3, ‘‘Preference for
Consolidated Compensatory
Mitigation,’’ we removed habitat credit
exchanges as a specifically identified
preference for compensatory mitigation
because we do not yet have the record
of success with this mechanism that we
have with other mechanisms such as
conservation banks.
The bulk of sections 6.2.3, ‘‘Ensuring
Durability on Public Lands,’’, and 6.2.4,
‘‘Transfer of Private Mitigation Lands to
Public Agencies,’’ was removed from
the policy and will be discussed in the
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implementation guidance, as well as the
prescriptive operational detail from
section 6.6, Managing Risk and
Uncertainty.
In section 7.1.4 ‘‘Habitat Credit
Exchange,’’ we added text indicating
that habitat credit exchanges are a
relatively new mitigation mechanism,
and warrant additional care and
consideration when implementing
them. We also removed section 7.1.5,
‘‘Other Third-party Compensatory
Mitigation,’’ as this is a purely
hypothetical mechanism which seems
to differ little from proponentresponsible mitigation, and it was
redundant with section 7.3, Other
Compensatory Mitigation Programs or
Projects.
In Table 1. ‘‘Comparison of Habitatbased Compensatory Mitigation Sites
Established Under Different
Mechanisms,’’ we removed the column
‘‘Instrument Required’’ because all
discussion of instruments will be in the
implementation guidance, and we
removed the final row of the table:
‘‘Other Third-party Mitigation Site.’’
We removed the draft policy’s section
8, Establishment and Operation of
Compensatory Mitigation Programs and
Projects; it will form the basis of the
implementation guidance.
Section 9 of the draft policy, Criteria
for Use of Third-party Mitigation, has
been re-numbered in this policy, and is
now section 8.
The majority of section 10,
Compliance and Tracking, has been
removed from the policy, and will be
discussed in the implementation
guidance; accordingly, the remaining
paragraph has been renumbered in this
policy as section 9.
Regarding appendix B, Glossary of
Terms Related to Compensatory
Mitigation, we removed several terms
that are more appropriate for the
implementation guidance document as
well as items that could be confused
with terms used in the ESA’s
implementing regulations.
Finally, we have removed appendix
C, Requirement of the Marine Mammal
Protection Act, to avoid confusion with
the policy’s focus on implementing the
ESA.
Summary of Comments and Responses
The September 2, 2016, notice
announcing our draft Endangered
Species Act Compensatory Mitigation
Policy (draft policy) (81 FR 61032)
requested written comments,
information, and recommendations from
governmental agencies, tribes, the
scientific community, industry groups,
environmental interest groups, and any
other interested members of the public.
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That notice established a 45-day
comment period, ending October 17,
2016, on the draft policy. Several
commenters (1) requested an extension
of time to provide their comments; (2)
asked the Service to revise and
recirculate the draft policy for comment;
or (3) asked the Service to withdraw the
draft policy to allow interested parties
additional time to comment. The
November 3, 2015, Presidential
Memorandum on Mitigation states,
‘‘Within 1 year of the date of this
memorandum, the Department of the
Interior, through the U.S. Fish and
Wildlife Service, shall finalize a revised
mitigation policy that applies to all of
the U. S. Fish and Wildlife Service’s
authorities and trust responsibilities.
The U.S. Fish and Wildlife Service shall
also finalize an additional policy that
applies to compensatory mitigation
associated with its responsibilities
under the Endangered Species Act of
1973.’’ In order to finalize the policy as
close as possible to the date outlined in
the Presidential Memorandum on
Mitigation, we were unable to publish
an extension or reopen the comment
period.
During the comment period, we
received approximately 150 public
comment letters, including comments
from Federal, State, and local
government entities; industry; trade
associations; conservation
organizations; nongovernmental
organizations; private citizens; and
others. The range of comments varied
from those that provided general
statements of support or opposition to
the draft policy, to those that provided
extensive comments and information
supporting or opposing the draft policy
in its entirety or specific aspects of the
draft policy. The majority of comments
submitted included detailed suggestions
for revisions addressing major concepts,
as well as editorial suggestions for
specific wording or line edits.
All comments submitted during the
comment period have been fully
considered in preparing this final
policy. All substantive information
provided has been incorporated, where
appropriate, directly into this final
policy or is addressed below. The
comments we received were grouped
into general issues specifically relating
to the draft policy, and are presented
below along with the Service’s
responses to these substantive
comments.
We received several comments
requesting clarification on various
aspects of the draft policy, including:
Reporting; monitoring; financial
instruments; coordination with States,
tribes, and local groups; the
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compensatory mitigation mechanisms;
and other implementation elements. We
recognize the value of these comments
and are giving them due consideration.
We have removed these elements from
this policy and will address them in the
implementation guidance.
A. Definitions
Comment (1): One commenter
suggested a more precise definition of
compensatory mitigation. The
commenter stated the draft policy’s
definition suggests any remaining
impacts must be ‘‘unavoidable’’ and not
simply ‘‘un-avoided.’’ The commenter
suggests the draft policy’s definition is
confusing and inconsistent with the
ESA language that uses ‘‘minimize’’ and
‘‘mitigate.’’
Response: The definition of
‘‘compensatory mitigation’’ in this
policy derives from the Department of
the Interior’s Department Manual (600
DM 6.4C). This definition gives more
flexibility in the use of avoidance and
minimization measures for listed
species than the recommendation
provided in the comment. The use of
the terms ‘‘appropriate and practicable’’
in this policy’s definition give deference
to project proponents and Federal
agencies.
Comment (2): Comments included a
statement that the definition of
landscape-scale approach is unclear.
Response: Our definition of
landscape-scale approach is informed
by the definition used in 600 DM 6 and
our Service’s mitigation policy. The
landscape approach to conservation
considers the functional context of the
species or habitat under consideration.
For example, activities involving fairy
shrimp might be evaluated at a vernal
pool complex or regional scale. Issues
affecting sturgeon may require strategies
that consider an entire river system,
thousands of miles long. Fundamental
to this approach is an understanding of
what is important to ensure the
ecological function of the species or
habitat in question, at the appropriate
scale. Examples include the North
American Waterfowl Management Plan,
many fisheries management plans,
recovery plans for federally listed
species, watershed restoration plans,
and State wildlife plans.
B. Policy Is Based on Existing Authority
i. ESA Sections 7 and 10
Comment (3): Several commenters
stated that the mitigation sequence that
uses ‘‘avoidance’’ cannot be required
under sections 7 and 10 of the ESA,
unless it alleviates a jeopardy situation.
One of the commenters noted that
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‘‘avoidance’’ is voluntary on the part of
an action agency or applicant.
Response: The use of ‘‘avoidance’’ in
the mitigation sequence is not a
requirement in the sense that all
impacts to listed species or critical
habitat must be avoided. Through the
policy, we are neither requiring nor
mandating avoidance. One of the stated
purposes of the ESA at section 2(b) is to
‘‘provide a means whereby the
ecosystems upon which endangered
species and threatened species depend
may be conserved.’’ Developing options
to avoid impacts to listed resources
under sections 7 and 10 is important to
furthering this purpose and effectively
implementing the ESA.
The policy is consistent with the
Presidential memorandum (‘‘Mitigating
Impacts on Natural Resources from
Development and Encouraging Related
Private Investment’’) issued November
3, 2015 (see 80 FR 68743, November 6,
2015), in which the President directed
all Federal agencies that manage natural
resources ‘‘to avoid and then minimize
harmful effects to land, water, wildlife,
and other ecological resources (natural
resources) caused by land- or waterdisturbing activities, and to ensure that
any remaining harmful effects are
effectively addressed, consistent with
existing mission and legal authorities.’’
The Service agrees that some impacts to
listed species or critical habitat may be
unavoidable and that the ESA provides
a mechanism for both Federal agencies
(section 7) and non-Federal entities
(section 10) to receive take coverage in
the case of any unavoidable impacts.
There are multiple sections of our
implementing regulations in title 50 of
the Code of Federal Regulations (CFR) at
50 CFR part 402 (§§ 402.10, 402.13) that
direct the Service to suggest
modifications or make advisory
recommendations to Federal action
agencies and applicants to avoid the
likelihood of adverse effects to listed
species or critical habitat. Additionally,
if the Service is required to provide a
reasonable and prudent alternative
under section 7 consultation, the
regulations state that such an alternative
must be one ‘‘that the Director believes
would avoid the likelihood of
jeopardizing the continued existence of
listed species or resulting in the
destruction or adverse modification of
critical habitat’’ (50 CFR 402.02). Use of
the full mitigation sequence including
avoidance and minimization of impacts
to listed species is consistent with the
purposes and mandates set forth in the
ESA.
Comment (4): Several commenters
suggested compensatory mitigation
cannot be required under section 7 of
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the ESA, and that there is no authority
to include such mitigation in reasonable
and prudent measures (RPMs) and the
accompanying mandatory terms and
conditions that the Service includes in
incidental take statements. Some stated
that compensation is limited to
voluntary actions on behalf of the action
agency and recommendations on the
part of the Service. One comment stated
compensation was not appropriate in
both RPMs and reasonable and prudent
alternatives (RPAs). Another suggested
that compensation under section 7
consultation was appropriate but not
under section 7(a)(4) conference.
Commenters cited the ESA, its
implementing regulations, and the
Service’s 1998 Consultation Handbook.
Response: As discussed in sections
4.1.2 and 4.1.3 of this policy,
compensatory mitigation can play an
important role in section 7(a)(2)
consultations and 7(a)(4) conferences.
Compensatory mitigation can
appropriately be included as part of an
action subject to consultation, or in
reasonable and prudent alternatives to
avoid the likelihood of jeopardy, in
order to reduce the net adverse effect of
an action on proposed or listed species
or designated critical habitat. This
policy clarifies those circumstances
where it may be appropriate to
incorporate mitigation into reasonable
and prudent measures and terms and
conditions as part of a section 7(a)(2)
consultation. For example, throughout
this policy, ‘‘compensatory mitigation’’
or ‘‘compensation’’ is used to include
any measure that would rectify, reduce,
or compensate for an impact to an
affected resource. Rectifying the impact
means ‘‘repairing, rehabilitating, or
restoring the affected environment’’ (40
CFR 1508.20). Restoring impacted
habitat is a commonly used reasonable
and prudent measure that meets the
definition of compensatory mitigation in
this policy, minimizes the amount or
extent of incidental take, and can be
accomplished consistent with the ESA
and its implementing regulations at 50
CFR part 402.
Comment (5): Commenters said the
policy’s emphasis on the role of
conservation in the section 7
consultation process is misdirected.
Section 7(a)(2) does not include a
conservation requirement for Federal
agencies.
Response: The Service respectfully
disagrees. Section 7(a)(2) requires that
Federal agencies ensure their actions do
not jeopardize the continued existence
of endangered and threatened species or
result in the destruction or adverse
modification of critical habitat. This
requirement is accomplished through
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the consultation process, which
concludes with the Service’s biological
opinion. In the event a section 7
consultation concludes with a jeopardy
or adverse modification determination,
the Service will include reasonable and
prudent alternatives (RPAs), when
possible, that the action agency can
implement to avoid violation of section
7(a)(2) of the ESA. Options for RPAs can
include compensatory mitigation in
order to avoid a jeopardy or adverse
modification situation, as long as they
are consistent with the definitions at 50
CFR 402.02. When the Service’s
biological opinion concludes that the
agency action would not result in
jeopardy or adverse modification, the
Service will include reasonable and
prudent measures (RPMs) to minimize
any incidental take associated with the
action. As described in the policy,
minimization of impacts of the taking
on the species may include
compensation as consistent with the
ESA implementing regulations. The
Service provides technical assistance
during the section 7(a)(2) consultation
process to help reduce the need for
RPMs and RPAs. These measures fall
within the ESA’s definition of
‘‘conserve,’’ which means ‘‘to use and
the use of all methods and procedures
which are necessary to bring any
endangered species or threatened
species to the point at which the
measures provided pursuant to [the
ESA] are no longer necessary.’’
Comment (6): Several commenters
expressed concern that the policy would
complicate the process for sections 7
and 10, and cause project delays. The
commenters stated that such delays
could create increased project costs.
Response: The Service respectfully
disagrees. Mitigation provided in
advance of impacts, such as through a
conservation banking program, can
expedite project reviews by the Service,
because the mitigation is already
established and has already gone
through the due diligence process. Clear
guidance on application of
compensatory mitigation mechanisms as
provided in this policy, should assist
Service staff and project proponents
implement their ESA responsibilities in
a timely fashion. Furthermore,
conducting compensatory mitigation
may assist in the compliance with other
required laws, which may expedite the
project process. For example,
compensatory mitigation may lower the
level of analysis required by NEPA
(allowing a mitigated environmental
assessment/finding of no significant
impact instead of an environmental
impact statement).
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Comment (7): One commenter
objected to the phrase ‘‘recovery
measure’’ when discussing section
7(a)(1) of the ESA. The commenter
provided substantial information,
including a section of the preamble from
the Service’s 1986 interagency
cooperation rulemaking (51 FR 19926,
June 3, 1986), noting the ESA does not
mandate specific actions under section
7(a)(1), nor does it authorize the Service
to mandate how or when Federal
agencies should implement their section
7(a)(1) responsibilities. Specifically, the
commenter said that section 7(a)(1) is
not a recovery measure, and the policy
failed to properly state the basis for such
a characterization.
Response: We agree that the directive
under section 7(a)(1) of the ESA does
not give the Service authority over other
Federal agencies, nor does it specifically
authorize actions to be implemented. It
does, however, direct other Federal
agencies to consult with the Service
when developing conservation programs
under section 7(a)(1). To this end, the
policy provides guidance and
recommendations on how Federal
agencies may achieve the greatest
effectiveness when implementing their
section 7(a)(1) obligations.
The policy clearly describes the basis
for the use of the term ‘‘recovery
measure’’ when describing section
7(a)(1), which comes from the definition
of the terms ‘‘conserve,’’ ‘‘conserving,’’
and ‘‘conservation’’ in section 3 of the
ESA. Although the word ‘‘recovery’’ is
not used in the definition, it clearly
describes recovery as ‘‘the use of all
methods and procedures which are
necessary to bring any endangered
species or threatened species to the
point at which the measures provided
pursuant to [the ESA] are no longer
necessary.’’ Additionally, section 7(a)(1)
directs all Federal agencies to ‘‘utilize
their authorities in furtherance of the
purposes of [the ESA]’’. One of the
stated purposes of the ESA is to
‘‘provide a means whereby the
ecosystems upon which endangered and
threatened species depend may be
conserved.’’ The intent is that all
Federal agencies have a responsibility,
using their existing authorities, to help
recover listed species.
Comment (8): One commenter stated
the policy should focus only on
implementation of voluntary mitigation
actions under the ESA. The commenter
noted that mitigation guidance for
sections 7 and 10 under the ESA are
provided in the habitat conservation
planning and consultation handbooks.
Response: This policy provides
greater clarity and detail with regard to
mitigation implementation than the
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section 7 and habitat conservation
planning handbooks. As stated earlier,
this policy reflects the many lessons
learned by the Service during our more
than 40-year history implementing the
ESA, particularly sections 7 and 10. We
agree that the use of voluntary
mitigation programs and actions that
further the purposes of the ESA should
be encouraged. The development and
implementation of voluntary mitigation
programs should also be effective and
consistent with other forms of
mitigation. The policy will guide such
voluntary efforts to promote consistency
in the same way it will guide mitigation
efforts in regulatory processes.
Comment (9): One commenter
recommended we add ‘‘and applicants’’
following ‘‘Federal agencies’’ in two
sentences in section 4.1.2.
Response: Applicants are not
typically involved in the establishment
of mitigation programs such as
conservation banks and in-lieu fee
programs; moreover, the responsibility
for ensuring a Federal action does not
violate section 7(a)(2) of the ESA
ultimately lies with the Federal agency
proposing the action. We did not make
the suggested change.
Comment (10): One commenter
thought the Service should recognize
the importance of the Habitat
Conservation Plan (HCP) Assurances
(‘‘No Surprises’’) Rule (63 FR 8859,
February 23, 1998) and explicitly state
that remediation and alternative
mitigation will not erode protections
afforded by the No Surprises Rule.
Response: The Service does recognize
the importance of the No Surprises Rule
in the section 10 process, and agrees
that remediation and alternative
mitigation should not erode protections
afforded by the No Surprises Rule. The
Service works with applicants to
develop HCPs that include
contingencies for mitigation that does
not function as expected, including
remediation or alternative mitigation.
The No Surprises Rule is not eroded in
this case, because these contingencies
are included in the HCPs and agreed
upon ahead of time.
Comment (11): One commenter
requested clarification of how the draft
policy would apply to reinitiation of
consultations under section 7(a)(2) of
the ESA. Specifically, what would be
different, especially with regard to the
concepts of ‘‘net gain’’ and ‘‘no net
loss?’’
Response: During the reinitiation
process under section 7(a)(2), the
concepts under this policy and their
application to any consultation do not
change. The ESA’s directive to agencies
to ensure any action is not likely to
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jeopardize the continued existence of
any endangered or threatened species or
adversely modify its critical habitat
guides that process. The Service will
recommend actions consistent with this
policy, including consideration of the
goal of a ‘‘net gain’’ or, at a minimum,
‘‘no net loss.’’ Considering the variety of
actions under consultation, the reasons
for reinitiation, and the multitude of
species covered, it is not possible for the
policy to provide specific details
regarding the application of such
concepts during the consultation
process.
Comment (12): One commenter was
concerned about section 4.7 (Effective
Conservation Outcomes and
Accountability Through Monitoring,
Adaptive Management, and
Compliance) of the draft policy, which
states that: ‘‘A process for achieving
remediation or alternative mitigation for
compensatory mitigation failures
beyond the control of the responsible
party (e.g., unforeseen circumstances)
must be clearly described in the
mitigation instrument, biological and/or
conference opinion, or permit.’’ The
commenter asked the Service to the
clarify the statement to say that
biological opinions issued in connection
with section 7 consultations with
Federal agencies, other than the Service
itself, are not required to provide for
unforeseen circumstances, saying that
such a requirement is associated with
ESA section 10(a) HCPs, but is not
required in the context of section 7
consultations by the section 7
handbook, or existing law or
regulations. They were concerned the
current language of the draft policy
could be misinterpreted to mean that
section 7 biological opinions must
include alternative mitigation for
compensatory mitigation failures
‘‘beyond the control of the responsible
party,’’ and this policy should not
change the section 7 requirements for
avoiding jeopardy to the species and
adverse modification of critical habitat.
Response: The development and
implementation of mitigation programs
should be effective and consistent
among all forms of mitigation offered in
sections 7 and 10 of the ESA, regardless
of whether the mitigation is voluntary or
required. Planning for unforeseen
circumstances is part of effective
mitigation. The policy will guide efforts
to promote consistency, and Service
staff will work with applicants and
Federal agencies to explain how all
mitigation standards can be
incorporated into their mitigation plans.
Nevertheless, the ESA and its
implementing regulations ultimately
determine how the Service makes
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decisions regarding listed species. We
do not include the statement in question
in this final policy; we will address this
topic in implementation guidance.
Comment (13): One commenter stated
the Service has no statutory authority to
require section 7 consultation on
candidate or at-risk species or to include
such species in HCPs. If the policy
pursues a conservation goal in excess of
the Service’s actual regulatory and
statutory authorities, separate guidance
should be issued to draw this clear
distinction, in order to provide
complete transparency and direction to
both Service staff and others in actual
implementation.
Response: The commenter is correct
that the Service cannot require section
7 consultation for candidate or at-risk
species. ESA section 7 regulations
provide for a conference between a
Federal action agency and the Service
for actions that are likely to jeopardize
the continued existence of a proposed
species or likely to result in destruction
or adverse modification of proposed
critical habitat (50 CFR 402.10).
Including candidate or other at-risk
species in conferences would be
voluntary on the part of the Federal
agency; however, it is encouraged by the
Service and through this policy, and
other Federal agencies may voluntarily
conference to expedite possible future
re-consultations. This is consistent with
ESA goals of recovering listed species
and, ideally, avoiding the need to list
species because threats to them have
been addressed. Further, intra-Service
consultations and conferences will
consider effects of the Service’s actions
on listed, proposed, and candidate
species. Candidate species are treated as
if they are proposed for listing for
purposes of conducting internal Service
conferencing.
Additionally, under section 10 of the
ESA, HCPs are voluntary and developed
by the applicant, in consultation with
the Service. It is the applicant who
decides which candidate or non-listed
at-risk species they wish to include. The
Service has found that many applicants
elect to include at-risk species to receive
‘‘no surprises’’ assurances and preclude
the need to amend the associated
incidental take permit, should the
species become listed in the future. The
voluntary inclusion of at-risk species in
both the conference and HCP processes
are proactive approaches to reduce the
need for future listing of the species.
Comment (14): One commenter said
the Service mixes the concepts of
voluntary conservation
recommendations that can be provided
under ESA section 7(a)(1) with
requirements under ESA section 7(a)(2).
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They also commented that neither
standard under ESA section 10 imposes
a ‘‘no net loss’’ requirement.
Response: Federal agencies are
directed to consult with the Service
under ESA section 7(a)(1) to assist their
development of programs to conserve
listed species. Technical assistance to
agencies with actions that require
compliance with section 7(a)(2) is a
logical nexus for the Service to advise
Federal agencies about section 7(a)(1)
conservation opportunities associated
with these actions. Similarly, technical
assistance to non-Federal applicants for
incidental take permits under section
10(a)(1)(B) is a logical nexus to advise
them about conservation opportunities
associated with these actions. This
policy provides a framework for such
recommendations, and does not
otherwise alter or substitute for
standards under the ESA or the
regulations implementing ESA sections
7(a)(2) and 10(a)(1)(B). Though not
required, striving for ‘‘no net loss’’ in
the status of the species’ conservation is
an appropriate mitigation goal, and may
be to the benefit of the other agency or
private landowner in greater future
regulatory certainty or expedited future
compliance (e.g., including ‘‘at-risk’’
species).
ii. Authorities—Other
Comment (15): One commenter
requested that we revise section 5.3 of
the draft policy to provide more detail
about how compensatory mitigation
would work in relation to section 4(d)
rules for threatened species.
Response: This policy is intended to
be general in nature. More detailed
guidance documents covering specific
activities may be developed in the
future, such as for rules promulgated
under section 4(d) of the ESA.
Comment (16): One commenter said
that it was unclear how the policy
would ‘‘replace’’ rules promulgated by
other Federal agencies for guiding
implementation of Federal laws such as
the Clean Water Act (33 U.S.C. 1251 et
seq.) and natural resources such as
‘‘waters of the United States.’’ They
requested clarification of how the April
10, 2008, joint rulemaking of the U.S.
Army Corps of Engineers (USACE) and
the Environmental Protection Agency
(EPA) (73 FR 19594) applies to ESA
actions and what the impact of the
policy would be.
Response: The Service has added
clarification to this final policy that it
does not replace or alter the referenced
April 10, 2008, rule (73 FR 19594).
Processes established by applicable
statutes and regulations remain in effect
and are not superseded by this policy.
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This policy applies to compensatory
mitigation for all species and habitat
protected under the ESA and for which
the Service has jurisdiction. The April
10, 2008, rule (73 FR 19594) applies to
impacts to aquatic resources permitted
by section 404 of the Clean Water Act.
Comment (17): One commenter said
that issuance of this policy violates the
Administrative Procedure Act (APA; 5
U.S.C. subchapter II) or the Regulatory
Freedom Act (RFA).
Response: The Service complied with
all necessary requirements in publishing
the final policy. We are unaware of the
Regulatory Freedom Act but for the
purposes of this response, will assume
the commenter is referring to the
Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.). The policy does not
require compliance with the APA or the
RFA because it is not a regulatory
document.
Comment (18): One commenter was
concerned that voluntary mitigation
could be abused if an agency were to
unreasonably withhold action for the
purpose of applying undue pressure to
force an applicant to volunteer
mitigation measures. They said the
policy should acknowledge and protect
against this possibility.
Response: We agree with the
commenter that such an approach by
Service or other agency staff would be
unacceptable. It would also be contrary
to this policy and existing authority.
Processes established by applicable
statutes and regulations remain in effect
and are not superseded by this policy.
Comment (19): One commenter stated
that the policy goes beyond the
authorities granted the Service in both
sections 7 and 10 of the ESA. The other
authorities relied on by the Service in
adopting this policy, including the
Presidential directives and memoranda,
cannot legally form the basis for the
promulgation of the policy.
Response: This policy is designed to
improve and clarify implementation of
the ESA. Towards that end, it seeks to
provide a framework for effecting
mitigation that reflects a permissible
reading of the law, while fulfilling the
conservation purposes of the ESA.
Federal agencies are directed to consult
with the Service under ESA section
7(a)(1) to assist their development of
programs to conserve listed species. A
mitigation framework may provide
valuable expertise for an agency
considering their section 7(a)(1)
responsibilities. Additionally, a
framework may assist agencies with
actions that require compliance with
section 7(a)(2) of the ESA. Similarly,
technical assistance to non-Federal
applicants for incidental take permits
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under section 10(a)(1)(B) of the ESA is
a logical nexus to advise them about
conservation opportunities associated
with these actions. The policy provides
a framework for such recommendations
and does not otherwise alter or
substitute for the regulations
implementing ESA sections 7(a)(2) and
10(a)(1)(B). Authority to make
recommendations to mitigate impacts to
resources covered by the ESA is
provided by that statute. Promulgation
of this policy is consistent with not only
the ESA, but also the Office of
Management and Budget’s guidelines on
interpretive policies. Those guidelines
state that public policies, such as this
one, guide administrative processes
while increasing an agency’s
predictability to external parties.
Comment (20): One commenter noted
the ESA imposes different standards
and prohibitions with respect to prelisting versus post-listing activities for
candidate conservation agreements with
assurances (CCAAs) and safe harbor
agreements (SHAs). By incorporating
the net conservation benefit standard
used for SHAs, the Service fails to
account for these differences and
conflates its treatment of pre-listing and
post-listing activities.
Response: The Service does not
intend to change the requirements for
CCAAs and SHAs. The intent of the
policy is to describe the requirements
for converting either of these agreements
to a mitigation agreement should a
landowner desire to make their
conservation more permanent and use it
for mitigation.
iii. NEPA
Comment (21): One commenter said
that the policy should recommend that
the Service comment on NEPA
documents apart from, or in addition to,
section 7 consultation.
Response: We agree that application
of the Service’s authority to make
advisory comments and
recommendations under NEPA provides
a powerful capability for influencing
conservation of a broad array of natural
resources while helping agencies and
proponents identify appropriate project
alternatives. The Service will continue
to comment on NEPA documents in
addition to conducting section 7
consultations whenever warranted. Our
application of NEPA in a mitigation
context is covered in the Service
mitigation policy (81 FR 83440,
November 21, 2016).
Comment (22): One commenter said
the policy would increase the time and
resources required by Federal agencies
to comply with section 7 of the ESA and
by proponents of any projects that may
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adversely affect an at-risk species. The
commenter said that the policy meets
the definition of a major Federal action
defined at 40 CFR 1508.18 and should
be analyzed in an environmental impact
statement to comply with NEPA.
Response: As explained in more detail
below, neither of the two alternatives
evaluated in the NEPA assessment
would be expected to result in
significant effects to the human
environment within the meaning of
NEPA and the CEQ regulations.
Although we describe potential actions
and consequences that could flow from
each of the alternatives, the nature and
scope of environmental consequences
that are likely to result from any of the
alternatives would depend on a variety
of intervening circumstances that are
impossible to identify in this analysis.
However, we find there is no basis to
infer that any such effects, even viewed
generously, would be significant.
In addition, because of the
programmatic nature of the draft policy
and the breadth of activities under
consideration, the analyses of
environmental effects must be very
general, addressing the consequences
from each alternative at a programmatic
scale. Regardless of the alternative, we
anticipate that the majority of the
specific actions covered under the
policy would receive additional projectspecific NEPA review, either by other
Federal agencies during their project
review or by the Service during review
of an ESA section 10(a)(1)(B)
application. Those project-specific
reviews would include development of
appropriately detailed alternatives
based on information necessary to
complete informed and meaningful
effects analyses. That information (e.g.,
location, timing, duration, and affected
resources, etc.) is currently not
available. More detailed information is
contained in the environmental
assessment, which is available on the
Internet at https://www.regulations.gov at
Docket Number FWS–HQ–ES–2015–
0165.
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C. Net Conservation Gain/No Net Loss
Comment (23): One commenter stated
the policy should more consistently
emphasize throughout that
‘‘conservation’’ is the goal for protected
species and their habitat, using our full
suite of authorities including the ESA.
While ‘‘no net loss’’ is appropriate
under certain statutes like the Clean
Water Act (as acknowledged in the
April 10, 2008, joint rulemaking of
USACE and EPA (73 FR 19594), for
example), ‘‘no net loss’’ is a lower
standard than what they have sought in
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conservation banking and in-lieu fee
programs.
Response: The Service’s mitigation
policy (81 FR 83440, November 21,
2016) sets a mitigation planning goal of
‘‘net conservation gain,’’ which seeks to
improve the status of affected resources,
and, at a minimum, maintain the status
of those resources (i.e., ‘‘no net loss’’).
Adhering to the standards discussed in
section 5 of this policy (Compensatory
Mitigation Standards) is the best way to
attain this goal, although we recognize
that achieving a net conservation gain
will not be possible in every
circumstance, and in those cases will
strive for ‘‘no net loss.’’
Comment (24): One commenter
strongly opposed the goal of a ‘‘net
gain’’ in the policy, stating the Service
lacks the underlying statutory authority
to require it under the ESA and it will
likely result in an uncompensated
taking in violation of the U.S.
Constitution. The commenter stated that
the obligations under the policy, with
the use of mandatory language such as
‘‘must’’ and ‘‘shall,’’ constitute a
rulemaking.
Response: This policy adopts
mitigation principles established by the
Service’s mitigation policy (81 FR
83440, November 21, 2016) and
establishes compensatory mitigation
standards to guide the use of
compensatory mitigation under the
ESA. The mitigation goal of ‘‘net gain’’
or, at a minimum, ‘‘no net loss,’’ is to
assist the Service and its partners in
developing mitigation programs and
projects to further the purposes of the
ESA. One of the stated purposes under
section 2 of the ESA is to ‘‘provide a
means whereby the ecosystems upon
which endangered and threatened
species depend may be conserved.’’
Section 3 of the ESA defines
‘‘conserved’’ as ‘‘the use of all methods
and procedures which are necessary to
bring any endangered species or
threatened species to the point at which
the measures provided pursuant to this
Act are no longer necessary.’’ This
conservation purpose of the ESA is
served by the policy’s goal of a ‘‘net
gain’’ when developing compensatory
mitigation.
In this context, the policy is not a
legally binding rulemaking; the ESA and
its implementing regulations determine
the Service’s decisions for listed
species. The policy will not effectively
compel a property owner to suffer a
physical invasion of property and will
not deny all economically beneficial or
productive use of the land or aquatic
resources. This policy provides
consistent standards for the Service, and
its partners, to apply when developing
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compensatory mitigation programs or
projects, as appropriate under the
authority of the ESA. The use of the
terms ‘‘must’’ and ‘‘shall’’ in the policy
are directed toward the Service’s
authority in implementing the ESA.
The policy is broadly framed to
encompass all species covered under
the ESA, but does not result in any
particular actions concerning specific
properties. Additionally, this policy
substantially advances a legitimate
government interest (conservation of
species and their habitats) and does not
present a barrier to all reasonable and
expected beneficial use of private
property.
Comment (25): One commenter stated
that the Service does not explain how it
will determine or impose mitigation
measures to meet a mitigation target that
is somewhere between maintaining and
improving the status of affected
resources.
Response: The Service, being national
in scope of operations, wrote this policy
to allow for further clarification on a
regional and local scale. This will allow
the Service to work with Federal
agencies and applicants to develop
mitigation measures that meet objectives
based on local conditions and tailored
to the specific species that are impacted.
A less flexible policy could cause rigid
adherence to a protocol, which may be
more suitable in one region, or for one
species, versus another.
Comment (26): Commenters stated
that the ESA requirements to avoid
jeopardy or adverse modification and to
minimize the impact of any take of
listed species do not equate to the no
net loss or net gain goal articulated in
the draft policy, and the Service has no
authority under the ESA to require
measures that will result in a ‘‘net gain’’
or ‘‘no net loss.’’ In addition, one
commenter said a ‘‘net gain’’ or ‘‘no net
loss’’ goal is incompatible with wellestablished standards for administering
sections 7 and 10 of the ESA.
Response: Action agencies or
proponents may adopt Service
recommendations provided under this
policy as part of their proposed actions,
but electing to do so does not change the
applicable standards under the ESA or
otherwise alter the processes prescribed
under the ESA and its regulations.
The Service does not view a ‘‘net
gain’’ or ‘‘no net loss’’ goal as
incompatible with well-established
standards for administering sections 7
and 10 of the ESA. Instead, it is
complementary to the ESA requirements
to avoid jeopardizing the continued
existence of any listed species, or
destroying or adversely modifying any
designated critical habitat. To achieve
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this goal, an action agency or applicant
need not abandon the actions they have
taken to avoid jeopardizing the
continued existence of any listed
species, or destroying or adversely
modifying any designated critical
habitat. Instead, they may complement
these actions by including additional
measures that allow their action to reach
the ‘‘net gain’’ or ‘‘no net loss’’ goal.
Comment (27): One commenter said
by encouraging Service staff to work
with applicants to implement ‘‘no net
loss’’ or ‘‘net conservation gain,’’ the
judgment of applications will no longer
be standardized. They said the policy
does not state how conservation gain
will be measured, whether on a
numerical basis or under what
circumstances the Service will make a
qualitative judgment regarding the level
of mitigation that achieves this
standard.
Response: This policy is national in
scope, and it is beyond the scope of the
policy to provide specific quantifiable
measures to achieve a ‘‘net conservation
gain’’ or specify the methodology for
assessing or measuring the ‘‘net
conservation gain.’’ The Service’s
mitigation goal is to achieve a ‘‘net
conservation gain’’ or, at a minimum,
‘‘no net loss’’ of the affected resources.
The policy provides the framework for
formulating compensatory mitigation
measures to achieve this goal. The
geographical and ecological breadth of
this policy’s coverage combined with
the variation in project and impact types
affecting species and habitats
nationwide make the detailed
specifications for calculating ‘‘no net
loss’’ or ‘‘net gain’’ impossible to
include. Such determinations will either
be made on a case-by-case basis or will
be addressed through additional
guidance or planning processes.
Comment (28): Commenters said the
policy should be revised to help Service
staff avoid crossing the line between
‘‘encouraging’’ Federal agencies and
applicants to achieve ‘‘a net gain or, at
a minimum, no net loss in the
conservation of listed species’’ and
incorrectly representing to Federal
agencies and applicants that they are
somehow ‘‘required’’ to achieve a ‘‘net
gain’’ or, at a minimum, ‘‘no net loss’’
in the conservation of listed species.
Commenters added that Service staff
should be instructed by the policy to
clearly disclose to Federal agencies and
applicants at all times that section 7 of
the ESA does not require such a ‘‘no net
loss in the conservation of listed
species’’ or a ‘‘net gain’’ in relation to
the ‘‘no jeopardy’’ and ‘‘no adverse
modification’’ standards.
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Response: This policy clearly states
that the mitigation planning goal is a
goal, not a requirement. We expect
further clarification on a regional and
local scale to reiterate this distinction.
Comment (29): One commenter stated
the goal of ‘‘no net loss’’ is admirable
and adequate with respect to the
Presidential Memorandum (80 FR
68743, November 6, 2015); however, the
commenter is concerned this new
language may unfairly prohibit or
require mitigation for agricultural
actions without due process of
assessment.
Response: The Service will consider
the facts specific to the actions that we
review under our authorities. This
policy does not provide for the Service
to categorically deny development or
agricultural activities. Instead, our
decisions and opinions on those
activities will be guided by relevant
statutes and regulations.
Comment (30): One commenter said
the sentence, ‘‘Losses of habitat that
require many years to restore may be
best offset by . . . preservation of
existing habitat . . .,’’ is counter to the
‘‘no net loss policy.’’
Response: The entire sentence reads,
‘‘Losses of habitat that require many
years to restore may best be offset by a
combination of restored habitat,
preservation of existing high-quality
habitat, and improved management of
existing habitat.’’ It is the combination
and ratios of these three habitat
mitigation types that can create a ‘‘no
net loss’’ scenario. Improved
management can create an immediate
conservation benefit and habitat
restoration creates a long-term
conservation benefit, while preservation
of high quality habitat protects existing
habitat from being lost. Long-term land
management is included in the
durability standard.
D. Applicability
Comment (31): Several commenters
had concerns about the applicability of
the policy to existing mitigation
programs, HCPs and associated
incidental take permits, and ongoing
section 7 consultations that were
initiated between the Federal agency
and the Service prior to the effective
date of the final policy. The comments
requested clarity that the policy does
not apply to existing projects or projects
currently under development, including
the associated real estate and financial
assurances.
Response: The policy states that it
applies to Federal and non-Federal
actions permitted or otherwise
authorized or approved prior to
issuance of the policy only under
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circumstances where the action may
require additional compliance review
under the ESA. In addition, the policy
states that it does not apply where the
Service has already agreed in writing to
mitigation measures for pending
actions, except where new activities or
changes in current activities associated
with those actions would result in new
impacts, or where new authorities or
failure to implement agreed-upon
recommendations warrant new
consideration regarding mitigation.
Service offices may elect to apply this
policy to actions that are under review
as of its effective date (see DATES,
above).
Comment (32): The draft policy does
not include any de minimus size
consideration. While consultation
considers the extent of potential impacts
to ESA-listed species, the draft policy
does not. It talks in general terms about
credit valuation and ratios, but at some
point, there should be a consideration of
a de minimus project size to which this
draft policy would not apply.
Response: The policy is intended to
guide compensatory mitigation projects
for listed and at-risk species regardless
of the scope, magnitude, or size of the
project. As such, it would not be
reasonable to attempt to define ‘‘de
minimis’’ limits for the application of
the policy that would cover all species
and mitigation projects across the
country. However, step-down guidance
derived from this policy for particular
species would be more specific for the
biological needs of the species and
therefore likely consider factors related
to the scope of compensatory mitigation
projects.
E. Scope of the Policy
Comment (33): One commenter said
that the Service should identify
activities and projects that are exempt
from the policy.
Response: We agree that the scope of
coverage should be clearly described
and have listed those circumstances
when the policy does not apply in
section 3, Scope.
Comment (34): One commenter said
that it is important for the policy to
address species protected under
additional Federal laws, including the
Bald and Golden Eagle Protection Act
(BGEPA; 16 U.S.C. 668–668d) and the
Migratory Bird Treaty Act (MBTA; 16
U.S.C. 703–712).
Response: We agree that conservation
of the resources under BGEPA and
MBTA is important. However, those
resources, and processes specified by
those Acts and any implementing
regulations or guidance, are beyond the
scope of this policy. We discuss these
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authorities in the Service mitigation
policy (81 FR 83440, November 21,
2016).
Comment (35): One commenter said
that the policy should be limited to
listed threatened species, listed
endangered species, candidate species,
and designated critical habitat.
Response: We agree that the
commenter’s list of covered resources is
similar to our description of covered
resources in section 3, Scope, of this
policy. There we state that the policy
applies to all species and habitat
protected under the ESA and for which
the Service has jurisdiction. Endangered
and threatened species, species
proposed as endangered or threatened,
designated critical habitat, and
proposed critical habitat are the primary
focus of this policy. We also state that
candidates and other at-risk species
would benefit from adherence to this
policy, and encourage all Service
programs to develop programs and tools
in cooperation with States and other
partners.
F. At-Risk Species
Comment (36): Several commenters
suggested only listed species should be
covered by the policy, and ‘‘at-risk’’
species references should be removed.
Commenters suggested there is no ESA
basis for including at-risk species in the
policy, that no standards exist for the
definition of at-risk species, and that it
would create additional burdens on the
public. One comment requested
clarification of the jurisdiction of the
Service, States, and tribes regarding atrisk species.
Response: The Service has addressed
at-risk species through implementation
of the ESA under many voluntary
programs. Often partners (e.g., other
agencies, private landowners)
voluntarily consider ‘‘at-risk’’ species
for greater regulatory certainty and to
expedite future compliance if these ‘‘atrisk’’ species are later listed under the
ESA. Under section 6 of the ESA, the
Service partners with the States to fund
research and recovery actions on listed
and at-risk species. Candidate
conservation agreements with
assurances (CCAAs) are a highly
successful program for private
landowners providing voluntary
conservation for at-risk species. Many
HCPs under section 10 of the ESA also
include voluntary coverage for at-risk
species. These and other proactive
efforts for at-risk species, including our
draft Policy Regarding Voluntary
Prelisting Conservation Actions (79 FR
42525, July 22, 2014), focus on
preventing the need to list species under
the ESA. The Service also values its
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partnerships with the States and tribes
in conservation of fish and wildlife
resources. This final policy aims to
strengthen these partnerships and does
not extend the Service’s jurisdiction
over at-risk species. We have included
at-risk species, as appropriate, in the
policy to further these efforts in
preventing the decline of species to the
point that protection under the ESA is
necessary.
G. Equivalent Standards
Comment (37): One commenter
thought the policy should emphasize
that there are no prescribed standards
that will dictate mitigation but that
every situation will be considered factspecific and flexible, and be based upon
the voluntary actions of the proponent.
Response: The Service has written
this policy in a manner that facilitates
further clarification on a regional scale.
As with many of the decisions made in
impact analysis, determination of when
and what type of mitigation should be
implemented occurs on a project-byproject basis, under the authority at
hand, with information most
appropriate for the site or region of
impact. Section 7 of this policy,
Compensatory Mitigation Mechanisms,
allows the Service flexibility in the type
of mitigation mechanism used to meet
this need. Section 5 of the policy,
Compensatory Mitigation Standards,
describes the standards we will require
or recommend that all mechanisms
meet.
H. Landscape-Scale Approach
Comment (38): Individual actions that
harm ESA-listed, proposed, and at-risk
species must not be discounted or
minimized because they are considered
to impart only small or moderate
impacts within the broader context of
the landscape. The policy should
consider how these site-specific impacts
could be identified and accounted for
prior to development of the most
appropriate compensatory approach.
Response: The Service agrees that
small or moderate impacts that have
cumulative effects are important to
address. In each situation, the project
effects analyses should identify all
effects to the species under
consideration, as well as measures to
avoid, minimize, and compensate
adverse effects. These analyses can
characterize repeated, ongoing actions
that may affect a species at a larger
scale, and can help inform recovery
efforts at a local or regional level.
Ideally, the project proponent and the
Service would also identify
opportunities to support recovery/
conservation of that species and include
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them in the action, if possible. This is
a collaborative approach to
conservation, consistent with relevant
statutes and regulations, and can help
offset the cumulative effects of many
actions on the landscape.
Comment (39): One commenter said
the draft policy should provide
additional guidance on how landscapescale indirect effects would be evaluated
for buffers surrounding existing
mitigation sites, including mitigation
banks. They recommend clarification
regarding the process when additional
compensation may be necessary for
landscape-scale indirect effects to
existing mitigation sites.
Response: It is difficult at this time to
provide specific guidance on buffers
and indirect effects given the potential
universe of actions that could arise and
fact-specific situations of each
mitigation site. We declined to provide
such guidance in this policy.
Comment (40): Some commenters
were concerned that the landscape-level
approach to mitigation planning would
focus too narrowly on certain species to
the detriment of others, or that
purchasing credits from a conservation
bank or in-lieu fee program would not
equate to replacing lost habitat.
Response: The goal of a landscapescale approach to mitigation is to ensure
functionally successful compensatory
mitigation efforts for the habitats or
species under consideration. While no
project or habitat benefits all species all
the time, using a landscape context to
frame mitigation actions should
reinforce functionality at the
appropriate scale (i.e., tract, regional,
range) to benefit the target resource, and
in most cases, other resources/species
that also rely on that functional system.
Using a landscape approach will help
ensure the compensatory mitigation
measures will meaningfully offset
adverse effects to a species/habitat in a
way that is ecologically sustainable over
the long term. This is a more holistic
approach to ensuring the functionality
of the ecosystems on which federally
listed and at-risk species depend.
Comment (41): One commenter
recommends that the Service consider
revising the guidance provided under
section 5.1.2 of the draft policy to
discuss not only economies of scale
associated with conservation banks and
small impacts, but also to state that
large-scale impacts require large-scale
mitigation and such development
projects have the potential to create
landscape-scale conservation benefit for
species, which may not be best achieved
through banks.
Response: The Service agrees largescale projects have the potential to
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provide large-scale mitigation measures
to offset adverse effects and ideally
contribute to recovery. The examples
given in section 5.1.2 of the draft policy
are compensatory mitigation programs
that can be established in advance of
impacts, such as conservation banking
or in-lieu fee programs. A large-scale
mitigation project implemented in
advance of impacts will likely offset the
impacts of multiple projects, and is
essentially a conservation bank.
Comment (42): One commenter stated
that landscape-scale mitigation is
unauthorized and unfeasible.
Landscape-scale impact evaluations and
required mitigation measures on this
basis imports a policy objective into
official ESA decisions in excess of
statutory authority and is incongruent
with the ESA.
Response: The goal of the ESA is to
conserve endangered and threatened
species and the ecosystems on which
they depend. Through science and
technological advances, conservation
has more tools than ever to effectively
evaluate land use, populations,
hydrology, and so forth, at scales
relevant to the needs of federally listed
and at-risk species. To ensure the most
effective mitigation measures for these
resources, it is critical to put them in an
ecologically functional context, i.e., a
landscape. That does not mean every
action requires advanced, ecosystemlevel quantitative evaluations, but rather
that the effects of an action and
mitigation measures to offset those
effects take into consideration truly
functional strategies that will continue
to provide long-term resource benefits.
This does not expand any existing
authorities for ESA implementation.
Comment (43): We received
comments requesting clarification of
when programmatic approaches to
mitigation would be appropriate.
Response: This policy does not
require the development of
programmatic documents to support
infrequent compensatory mitigations
needs. The decision to develop
programmatic approaches to mitigation
will be made based upon resourcespecific circumstances, such as how
frequently agencies and applicants will
need to compensate for their impacts.
Comment (44): Comments included
concerns about the Service’s proposed
extension of critical habitat to areas not
currently occupied by a listed species,
on the basis that an area may become
critical because the species’ range is
expected to expand to that area. In
determining the scale of a landscapelevel approach to mitigation, the Service
should not ignore the need for a rational
connection to the area of actual impact
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of a proposed project. Instead, it should
base requirements for landscape-scale
mitigation on demonstrable connections
between truly foreseeable or predictable
impacts, rather than speculative
projections of habitat or range
modifications due to climate change.
Response: The Service agrees that
compensatory mitigation must be based
on the best available science, and have
a rational connection between project
effects and proposed mitigation
measures. The landscape approach
provides the context within which to
frame that connection. As our
understanding of species’ needs,
habitats, and climate change increases,
we will be better able to address
potential future needs of species and
their habitats. In planning mitigation
strategies, it is also important to
recognize uncertainties in future
conditions, including habitats, water
supplies, temperatures, etc. Those
uncertainties should be built into the
mitigation strategies to ensure that the
proposed mitigation benefits adequately
offset adverse effects over the long term.
The policy does not address the
designation of critical habitat; the
regulations for the designation of critical
habitat are found at 50 CFR 424.12.
Comment (45): One commenter said
the focus on landscape-scale
conservation is laudable, but the draft
policy introduces new processes and
standards that could make achieving
this goal more costly, time-consuming,
and burdensome. The policy should
include ways to incentivize the creation
of landscape-scale mitigation projects
that capitalize on the multiple
ecosystem services and efficiencies that
landscapes provide. More consideration
for the self-regulating aspects of natural
landscapes that could reduce
management and monitoring burdens
(lowering costs), and the ability to
unstack credits for different listed
species when their habitats overlap in
space but not in function (increasing
market returns), would help make
landscapes a priority for the
conservation marketplace.
Response: The landscape approach to
conservation provides a conceptual
framework to design effective and
durable mitigation strategies. The intent
is to approach mitigation planning and
implementation from an ecologically
functional perspective for more
effective, durable outcomes. Designing
mitigation that works with natural
landscapes will help reduce
management costs and increase
effectiveness. Monitoring also will help
confirm our underlying understanding
of mitigation benefits and may help
identify where our assumptions need
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revision. This is critical to mitigation
success.
Bundled or stacked credits cannot be
unbundled or unstacked to offset the
effects of multiple projects but can only
be used to offset the effects of a single
project. Once a unit of habitat is used
as mitigation for one project, regardless
of the number of listed species it
supports, it cannot be used as mitigation
a second time.
Comment (46): One comment
suggested that it is unclear why the
required inclusion of adjacent
ecosystems and human systems, which
is how landscapes are defined, into
conservation plans will provide a
benefit to species that do not require
those habitats or ecosystems for
survival. The Service should clarify
whether it intends mitigation consistent
with a landscape-scale approach to
require grouping of permittee proposed
compensatory mitigation projects or
grouping of project proponents, and in
situations where this is desired, the
benefits should be explained.
Response: Including consideration of
adjacent ecosystems and human systems
into a landscape approach to
compensatory mitigation recognizes the
potential effects those systems may have
on the species and habitats under
consideration. This is especially
important in ensuring long-term
ecologic functioning of the
compensatory mitigation that benefits
the species/habitat. We are increasingly
aware that adjacent landscapes and
human management actions can
significantly affect what was perceived
as a protected area. This policy
explicitly recognizes those factors in
developing long-term, comprehensive
conservation strategies for the resources
under consideration. Because those
strategies will be implemented using
market-based and collaborative
mitigation tools, the Service will work
with our conservation partners to
develop effective, feasible measures to
put conservation on the ground. The
policy does not require permittee
proposed mitigation projects to be
grouped, but they should be considered
in the context of the landscape in which
they occur.
Comment (47): One commenter said
that most species lack an up-to-date
analysis of conservation status, and few
have forward-looking strategies that the
Service intends to rely on in
implementing the policy. Furthermore,
not all landscape-scale conservation
strategies noted by the Service are peerreviewed, publicly vetted, scientifically
sound, or without controversy. If the
Service intends to rely on such
strategies in the context of preparing
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recovery plans, status reviews, and
similar documents, then these
landscape-scale conservation strategies
and the process for implementing them
must be vastly improved. The Service
should let the conservation market
identify lands that represent valuable
conservation targets and take advantage
of ‘‘market efficiencies’’ that are a
benefit of the conservation banking and
in-lieu fee forms of mitigation.
Response: The Service agrees on the
importance of using the best available
scientific information in developing
conservation strategies. We rely on our
conservation partners to bring their
information and expertise into a
collaborative process to help us develop
those strategies. We also appreciate the
assistance of the conservation market in
designing, implementing, and
expanding our suite of conservation
tools to benefit listed and at-risk
species.
Comment (48): One commenter said
the policy would benefit from greater
recognition that activities associated
with the management, monitoring,
protections, and assurances need not be
as robust in some instances, yet will
achieve a functional landscape that is
capable of supporting the conservation
of listed and at-risk species, different
from the actions necessary to provide
compensatory mitigation for wetlands
and other aquatic resources.
Response: The Service agrees that
some larger landscapes may require less
intensive management than smaller
areas. However, in most areas of the
country, there are few ‘‘self-regulating’’
systems left that are not greatly
influenced by invasive species, altered
hydrology, ongoing erosion, and climate
change. It is important in designing
feasible, meaningful mitigation to
appropriately scale the monitoring and
management actions to most effectively
provide resource benefits. This will
depend on the resources, landscapes,
and scale of the project, and should
have a rational connection between the
effects being offset and the benefits
provided. We declined to modify the
policy based on this comment.
Comment (49): One commenter said
the draft policy’s example of a
proactive, landscape-scale mitigation
approach provided by songbird
mitigation guidance in Texas to
encourage compensatory mitigation
opportunities is misleading. The
commenter cited two instances in which
potential conservation banks were
precluded from establishing species
credits due to the requirements in the
guidance.
Response: We respectfully disagree.
The example used in the policy is
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intended to show instances where the
Service has taken landscape-scale
approaches for species conservation and
compensatory mitigation. We recognize
that not all proposals developed under
the Texas example or other local
guidance will ultimately be finalized
and implemented, but the intent of this
policy is to promote consistency and
predictability so that mitigation
providers may develop programs that
are more likely to be implemented.
Comment (50): Some commenters
indicated that the policy should offer far
more guidance on when and how the
Service would apply a ‘‘landscape-level
approach’’ to ESA mitigation,
questioned whether the Service would
apply a landscape approach differently
to species with different range sizes, and
stated that the draft policy does not
explicitly describe how or whether a
landscape approach would apply to
listed species with narrow ranges.
Response: The landscape approach to
conservation considers the functional
context of the species or habitat under
consideration. Working with our
conservation partners and project
proponents, the Service will use a
landscape context to provide the most
effective and durable mitigation for
listed and at-risk species, while
preserving the greatest flexibility to
implement those measures at many
scales. Given the breadth of species and
landscapes under consideration, it is
impossible to give a ‘‘one size fits all’’
set of instructions. Using a landscape
context to frame mitigation actions
should reinforce functionality at the
appropriate scale (i.e., tract, regional,
range) to benefit the target resource and,
in most cases, other resources/species
that also rely on that functional system.
Though some species may have
relatively narrow ranges, their threats
may be best addressed at a landscape
scale (e.g., invasive species, altered
hydrology, climate change). This
approach will help ensure the
compensatory mitigation measures will
meaningfully offset adverse effects to a
species/habitat in a way that is
ecologically sustainable over the long
term.
Comment (51): One commenter noted
that the statement requiring
compensatory mitigation to be ‘‘sited in
locations that have been identified in
landscape level conservation plans or
mitigation strategies’’ does not take into
account the limited lands available for
acquisition or restoration in some areas
of the United States and the need to
acquire property from willing sellers.
Response: The Service recognizes
conservation opportunities vary across
the country by species and habitats. The
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landscape-scale approach is a way to
place those opportunities in an
ecologically functional context. The
policy allows for compensatory
mitigation on public lands (provided
certain criteria are met, e.g.,
‘‘additionality’’) and on private lands. It
also encourages market-based tools and
incentives to take advantage of the
unique circumstances in each area.
While there may be limitations in
available lands in some regions, the
policy includes a suite of tools that
should provide meaningful options for
feasible, durable compensatory
mitigation nationwide.
Comment (52): The policy will result
in the creation of a landscape-scale
system of conservation banks and other
mitigation sites controlled by the
Service that will take private land and
their resources out of productive use.
Response: The landscape approach to
conservation considers the functional
context of the species or habitat under
consideration. It does not affect land
ownership or control. Working with our
conservation partners and project
proponents, the Service will use a
landscape context to provide the most
effective and durable mitigation for
listed and at-risk species, while
preserving the greatest flexibility to
implement those measures at many
scales. Providing incentives for a
market-based approach to conservation
allows many tools to better meet the
needs of species as well as the needs of
landowner/project proponents.
Generally, the use of conservation
banking and other mitigation projects
will not take resources out of
‘‘productive’’ use. Rather, conservation
banks and other mitigation projects
located on private land remain under
control of the property owner and often
provide other productive uses, such as
grazing livestock.
I. Metrics
Comment (53): One commenter stated
that the policy should clarify that
actions can meet ESA conservation
standards using mitigation when
adverse effects, and mitigation offsets of
those effects, are calculated using tools
that consider more than mere gain or
loss of animals or habitat. For example,
tools like Habitat Equivalency Analysis
consider spatial, temporal, and
functional parameters that look beyond
mere loss or gain to calculate the extent
and quality of mitigation required in
given situations.
Response: A discussion of tools used
to calculate mitigation is not within the
scope of this policy.
Comment (54): Several commenters
were concerned that adequate detail
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about how assessment methodologies
are developed and applied was not
provided in the draft policy.
Commenters were also concerned that
the numerical loss and benefit to a site
is largely a qualitative measurement,
and the no methodology for
quantification is offered. They said that
transparent formulas to calculate
‘‘mitigation ratios’’ are needed to reduce
subjectivity and increase transparency.
They also noted that equivalent metrics
for determining losses due to impacts
and gains due to mitigation would aid
in the assessment of ‘‘no net loss’’ or
‘‘net gain.’’
Response: The Service agrees that
transparent formulas to calculate
‘‘mitigation ratios’’ reduce subjectivity
and increase transparency. We also
agree that equivalent metrics for
determining losses due to impacts and
gains due to mitigation would aid in the
assessment of ‘‘no net loss’’ or ‘‘net
gain.’’ This policy does include a
statement that equivalent metrics
should be used whenever possible.
Details about how to develop and
apply assessment methodologies that
are quantitative and transparent were
not included in the draft, or this final,
policy, because these details are speciesspecific and too complex to describe
adequately within the framework of the
policy. When detailed descriptions of
assessment methodology development
and application are prepared by the
Service for a species-specific mitigation
program, these descriptions are
routinely shared with the public.
Comment (55): One commenter said
that since buffers are so important, they
should be counted in the crediting of a
mitigation site at some ratio of a full
credit.
Response: The Service agrees with
this comment. In section 6.6, the policy
states, ‘‘If buffers also provide functions
and services for the species or other
resources of concern, compensatory
mitigation credit will be provided at a
level commensurate with the level of
functions and/or services provided to
the species.’’
Comment (56): One commenter stated
that for the purposes of mitigation, the
Service has not shown compelling
evidence that adequate assessment
methodologies exist to consider adverse
and beneficial actions that are
fundamentally different in nature.
Determining the numerical loss and
benefit to a site is largely a qualitative
measurement, and the draft policy offers
no quantification methodology.
Response: The policy describes types
of mitigation programs or projects that
do not directly replace species or habitat
losses resulting from development
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projects. These are the types of
programs in which the adverse actions,
like habitat development, would be
offset by an action that is fundamentally
different in nature, such as gating of
caves that serve as habitat for the
species. The Service acknowledges that
these types of credit/debit systems can
often be more subjective than the
traditional habitat-for-habitat type of
mitigation. However, this type of
mitigation has been the exception rather
than the rule, and we expect Service
staff to use other programs or projects
only when they are the best option to
alleviate the greatest threats to the
species involved. When these programs
or projects are allowed as mitigation, the
Service will clearly explain the link
between the threat and the selected
mitigation.
Comment (57): One commenter was
concerned that there was no discussion
of how successful ‘‘surrogate’’ indicators
of incidental take have been in assuring
adequate mitigation.
Response: The use of surrogate
indicators for the species impacted,
such as the species’ habitat, when
applying compensatory mitigation in
accordance with 50 CFR 402.14(i)(1)(i)
is discussed at section 5.2 of the policy.
We declined to add additional detail to
that discussion.
Comment (58): One commenter
suggested that the Service require that
all credits and debits associated with
the same species and region be
aggregated and reported across all
compensatory mitigation mechanisms.
They indicated this is critical to ensure
an offset achieves ‘‘net conservation
gain,’’ to ensure the offsets created by all
mechanisms are using the best available
science, and to ensure equivalency
across multiple mechanisms. They also
suggested when the same metric is not
used by two different mechanisms; the
requirement to define ‘‘the relationship
(conservation) between credits and
debits’’ can also be used to define the
relationship between different credit
metrics.
Response: Currently, the Service uses
the Regulatory In-lieu Fee and Banking
Information Tracking System (RIBITS)
to track credits and debits for
conservation banks. The Service intends
to work with the USACE to adapt
RIBITS for use by the Service to also
track credits and debits for in-lieu fee
programs. The type of credits that are
acceptable for a given species is
determined by the Service when a
mitigation program for a specific species
is developed and implemented. The
Service agrees that tracking the types
and amounts of credits used across a
species’ range is a good idea, as it
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informs our understanding of the
species’ status. Collecting this type of
information and working to achieve
consistency requires coordination
among Service staff, including those
from different program areas. Describing
the actions necessary to ensure this
coordination occurs is beyond the scope
of this policy.
Comment (59): One commenter
suggested a monitoring and verification
process should be required of all
mitigation. They said the verification
process should include a method to
verify that the outcomes of the project
achieve the performance standard
throughout the entire life of the
mitigation project, and that method
could be the initial assessment method
or an abbreviated assessment that still
quantifies the quality of the resource.
They also suggested the party
responsible for conducting the
verification should be identified
upfront.
Response: We agree that these are
important requirements to ensure that
mitigation remains adequate over time.
Specific methodologies for such
verification are beyond the scope of this
policy.
Comment (60): One commenter said it
should be made explicitly clear that
while adaptive management is critical
as knowledge and conditions change,
the necessary updates to metrics or
plans do not invalidate previous metrics
or credits. They suggested that each
credit, and debit if applicable, should be
labeled with the method used at the
time of assessment. They also suggested
that reports should acknowledge when
metrics are modified, but credits should
still be aggregated across time. They
noted that it may be necessary to use a
correction method, and these correction
methods should be transparent,
scientifically supported, and included
in all reports.
Response: We agree in concept;
however, this comment goes beyond the
scope of the policy.
Comment (61): One commenter asked
that we clarify that plans should rely
more on the criteria that define highquality habitat, including criteria for
landscape-scale attributes, indicating
these criteria should be consistently
reflected in the development of metrics
used to define credits and debits within
the region. They noted that
opportunities to enhance and protect
habitat may be outside of predefined
conservation areas, but they must meet
the definition for high-quality habitat
and be deemed acceptable.
Response: We agree that metrics
should define high-quality habitat. We
also agree that opportunities to enhance
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and protect habitat may be outside of
predefined conservation areas, and
regardless of location, they should meet
the definition for high-quality habitat
and be deemed acceptable. This concept
is captured in the final policy.
Comment (62): One commenter liked
the concept that ecological performance
criteria must be tied to conservation
goals and specific objectives identified
in compensatory mitigation programs
and projects, but they did not think the
draft policy adequately describes how to
accomplish this objective.
Response: The level of detail
necessary to describe how to
accomplish this objective is beyond the
scope of this policy and may be
addressed in implementation guidance.
Comment (63): One commenter stated
the draft policy should more explicitly
recognize the uncertainty associated
with mitigation for certain species and
describe a framework for managing the
uncertainty. They said the policy should
describe a framework the Service would
use to assess the appropriate balance of
avoidance, minimization, and
mitigation, as informed by the
likelihood of mitigation effectiveness
and the species’ recovery needs.
Response: The Service agrees that
there is uncertainty associated with
mitigation for certain species. This
policy includes a discussion of risk
management tools. These tools can be
used after the Service determines that a
mitigation program or project is
appropriate. Assessing risks and
determining if mitigation is appropriate
for a species is not within the scope of
this policy, as uncertainty associated
with mitigation for certain species will
be fact specific.
J. Additionality
Comment (64): We received two
comments on the draft policy’s use of
‘‘additionality’’ when developing
compensatory mitigation on both public
and private lands. Commenters believed
additionality is not feasible when
coupled with the ‘‘no net loss’’ goal, and
that some inconsistencies exist in the
descriptions in the text of the draft
policy.
Response: One purpose of using
‘‘additionality’’ as a standard in the
policy is to promote the ‘‘net gain/no
net loss’’ goal. There are many examples
of mitigation sites and programs that
have achieved these standards. The
concept of compensatory measures
providing additional benefits above
baseline conditions is described in
general terms in the policy. Those
descriptions in the text are intended to
give context to the conservation benefits
of mitigation actions being additive to
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baseline conditions on both private and
public lands.
K. Durability
Comment (65): Some commenters
were concerned that the requirement for
perpetual management of mitigation
sites places an undue burden on
mitigation providers, or that perpetual
management would be detrimental to
the resource. They said that the
imposition of perpetual endowment and
adaptive management places burdens on
all projects, and it would be impossible
for industry to manage and maintain
mitigation sites in perpetuity.
Response: Perpetual management of
mitigation sites is essential to assure
durability of compensatory mitigation.
The species and resources present on a
mitigation site will dictate what
management actions are undertaken.
Management plans are tailored to the
needs of the site. Mitigation providers
should carefully consider the long-term
commitment they are making when they
agree to implement a compensatory
mitigation project. Mitigation that is
permanent is expected to have
appropriate financial and real estate
assurances to meet the durability
standard in the policy.
L. Collaboration and Coordination
Comment (66): One commenter said
the policy would mandate the Service to
work directly with landowners,
potentially resulting in the loss of
confidential information. The
commenter noted recent conservation
plans produced in Texas were
developed by stakeholders and
administered through State agencies to
preserve confidentiality of private
landowners.
Response: The Service has a long
history of working with private
landowners to conserve fish and
wildlife resources, including
endangered and threatened species. Our
partnerships with private landowners
are essential to achieving our
conservation mission. The policy does
not include a mandate to work directly
with landowners, but supports the ESA
and its implementing regulations, which
allows us to work with a variety of
entities towards the recovery of listed
species, and encourages cooperative
conservation with all of our partners,
including the exchange of ideas and
information to better inform species
management and evaluation. As noted
in the policy, transparency in
compensatory mitigation programs and
ESA implementation is essential to
achieving success. The Service is
considerate of confidentiality, and any
personal information maintained by the
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Service is protected by law (e.g.,
Freedom of Information Act, 5 U.S.C.
552; Privacy Act, 5 U.S.C. 552a) to
prevent unlawful dissemination.
Comment (67): One commenter was
concerned that the Service developed
the policy without having addressed
concerns raised by States and other
parties regarding the Service’s
mitigation policy. They said that
moving forward with this guidance
without finalizing the overarching
mitigation policy was premature, and
created uncertainty and confusion over
what the Service was likely to adopt.
Response: This compensatory
mitigation policy is a step-down policy
under the final Service mitigation
policy, which published in the Federal
Register on November 21, 2016 (81 FR
83440). There were no substantial
changes between the draft and final
Service mitigation policy. In finalizing
the Service’s mitigation policy, we fully
considered all comments and concerns
raised by States and other parties. We
also considered those comments as we
developed this policy.
Comment (68): Two commenters
addressed the relationship between this
policy and mitigation policy
developments underway in other
agencies. One commenter was
concerned that while interagency
cooperation is addressed in the draft
policy, it only provided a history of
previous ESA requirements. They were
concerned that the draft policy did not
address the relationship between similar
policies being developed by other
Federal land management agencies such
as the Bureau of Land Management and
the U.S. Forest Service. Another
commenter noted that other Federal
agencies are also responding to the
Presidential memorandum (‘‘Mitigating
Impacts on Natural Resources From
Development and Encouraging Related
Private Investment’’) issued November
3, 2015. They said that this created the
opportunity for the Service to enter into
agreements with other Federal agencies
to work together on the implementation
of similar mitigation policies and to
avoid conflicts, delays, and
inefficiencies.
Response: At the time this policy is
being finalized, neither the Bureau of
Land Management nor the U.S. Forest
Service has published final mitigation
policies or regulations. The Service did
provide comments on their proposed
policies, and we did receive comments
on this policy from those agencies. This
policy, like the Service mitigation
policy published November 21, 2016 (81
FR 83440), was developed in
accordance with the November 3, 2015,
Presidential Memorandum; the
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Secretary of the Interior’s Order 3330
entitled, ‘‘Improving Mitigation Policies
and Practices of the Department of the
Interior’’ (October 31, 2013); and
Departmental Manual chapter (600 DM
6) on Landscape-Scale Mitigation Policy
(October 23, 2015). The commenter’s
concern is anticipated by those
documents, which envision the various
agencies’ mitigation policies applying
common principles, terms, and
approaches, thereby providing greater
consistency and predictability for the
public. Subsequent agreements between
the Service and other agencies may be
developed as need arises.
Comment (69): One commenter said
the draft policy would be improved if it
built upon and utilized the USACE and
EPA’s definitions and mitigation
policies. They said that a reconciliation
of terms and process should be part of
the Service’s next steps.
Response: We agree that this policy
should apply concepts and definitions
compatible with those developed
through decades of mitigation practice
under the Clean Water Act.
Accordingly, we have developed this
policy to use the same terms and
approaches found in regulations and
guidance promulgated by the USACE
and EPA whenever possible. In some
cases, we also recognized the need for
language tailored to authorities,
processes, and resources covered by the
ESA rather than the Clean Water Act; in
these cases, the policy’s language
complies with the Departmental Manual
on Landscape-Scale Mitigation Policy
(600 DM 6).
Comment (70): One commenter said
that the implementation of this policy
will establish an inconsistent ESA
framework because the National Marine
Fisheries Service did not adopt the
Service’s mitigation policy (81 FR
83440, November 21, 2016). The
commenter said this approach is
contrary to the typical practice of
promulgating joint regulations by the
two agencies that provide for uniform
application of the ESA. The commenter
stated that by unilaterally proposing this
policy and the Service mitigation policy
(81 FR 83440, November 21, 2016), the
Service is creating disparate
requirements that will impose
significant and additional regulations on
project sponsors based on the possibility
of a species being affected.
Response: This policy is not a
rulemaking and cannot otherwise alter
or substitute for the existing regulations
applied by both the National Oceanic
and Atmospheric Administration
(NOAA) and the Service in
implementing the ESA. We also have
coordinated development of both this
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policy and the Service mitigation policy
(81 FR 83440, November 21, 2016) with
NOAA, and incorporated their
suggestions and modifications. Also,
this policy was required under the
Presidential Memorandum on
Mitigation, the Department of the
Interior Secretarial Order 3330, and 600
DM 6.
Comment (71): One commenter said
that the Service and other agencies risk
unnecessary duplication of efforts and
conflicting requirements, which will
further delay project approval. They
encouraged the Service to consider
mitigation frameworks already in place
before adding another layer of
mitigation requirements to an already
complex and burdensome project
approval process.
Response: We agree that existing
mitigation programs and frameworks, as
well as existing mitigation and
conservation plans, should be
considered. The Service recognizes that
there may be existing plans developed
by State and local governments and
other stakeholders with characteristics
that may be useful in mitigation
planning depending on the specific
action and the affected resources. The
Service will work with project
proponents and other stakeholders in
reviewing existing programs,
frameworks, and plans for applicability
in the context of a specific action.
Comment (72): One commenter said
the policy would complicate other
agencies’ processes. They said that it
would increase opportunities for the
Service to force concessions from other
Federal agencies and permittees, and
that it has the potential to violate
organic acts and will undoubtedly
complicate the approval process for
mining operations and other land users.
Response: The scope of this policy
does not limit the existing discretion of
an action agency, or hold the action
agency or applicant responsible for
mitigation beyond an action agency’s
own authority, mission, and
responsibilities. The Service recognizes
that the authorities and processes of
different agencies may limit or provide
discretion regarding the level of
mitigation for a project. This policy is
not controlling upon other agencies, and
the Service acknowledges that there
may be limitations (e.g., agency-specific
authorities and 600 DM 6) on the
implementation of measures that would
achieve the policy’s goal of ‘‘net
conservation gain’’ or a minimum of ‘‘no
net loss’’ when the costs of such
mitigation are reimbursable by project
beneficiaries under laws and regulations
controlling agencies’ activities (e.g.,
Bureau of Reclamation). Other agencies
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may voluntarily adopt Service
recommendations, which may expedite
their other requirements.
Comment (73): Some commenters
expressed interest in a collaborative
approach to mitigation planning on a
landscape level. One commenter
expressed support for additional
engagement with stakeholders; another
commented that the role of State
wildlife data, analyses, and expertise
should be utilized to the greatest extent
possible; another commenter was
skeptical of the collaborative approach
preferred by the Service.
Response: The Service agrees that
developing multi-scale conservation
plans and strategies benefits from many
invested stakeholders that bring their
unique insights and perspectives to
ensure a more comprehensive and
robust blueprint, and looks forward to
building on our conservation
partnerships through collaborative
planning efforts. Our State partners in
particular are critical to successful
compensatory mitigation of federally
listed and at-risk species. They bring
statutory responsibility, data, expertise,
and management capabilities to better
ensure successful, durable mitigation
efforts on the ground.
Comment (74): Several commenters
were concerned about the level of
coordination undertaken by the Service
on establishment of mitigation
programs, and encouraged the Service to
engage with both mitigation partners
and with State agencies, to avoid
duplication of effort and crossjurisdictional issues and to improve
outcomes. One commenter urged the
Service to expedite reviews by working
with agencies that already have
established mitigation policies and
programs.
Response: The Service agrees that we
have common goals with our partners
and achieve much better outcomes
when we work together on coordinated
mitigation programs, especially where
our jurisdiction overlaps with that of
other agencies as it often does with our
State wildlife agency partners. The
Service intends to continue working
with all of our partners.
M. Transparency
Comment (75): One commenter
requested clarification on the Service’s
meaning of ‘‘direct oversight’’ in the
draft policy regarding compensatory
mitigation programs and projects. The
commenter also requested clarification
on use of third-party evaluators in
preparing monitoring reports for
programs or projects.
Response: The policy identifies the
Service’s authority for direct oversight
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of compensatory mitigation programs
and projects through sections 7 and 10
of the ESA. Under sections 7 and 10, the
Service oversees the terms and
conditions of the incidental take permit
(section 10) or of the incidental take
statement (section 7). Details on the
roles of third-party evaluators involved
in specific project actions are beyond
the scope of the policy.
Comment (76): We received several
comments pertaining to the availability
of information generated from
mitigation programs. Commenters
recommended the policy include
standards for transparency of data and
documents, participation of
stakeholders, and consistency of data
reported through mitigation programs.
Response: Information on
conservation banks is available to the
public on the Regulatory In-lieu Fee and
Banking Information Tracking System
(RIBITS), and the Service intends to
work with the USACE to add Serviceapproved in-lieu fee programs to that
platform. As noted in the policy, the
Service will share appropriate
information concerning mitigation
programs with the public, with the
exception of personally identifiable
information or other information that
would be exempt under the Freedom of
Information Act. We declined to add
specific standards for transparency to
the policy. Prescriptive standards for the
type of data to be shared would not be
reasonable for a policy that covers the
myriad listed species across the country.
Such standards would be better suited
for species-specific guidance.
N. Preference for Advance Mitigation
Comment (77): One commenter stated
the policy should adopt an approach
similar to that taken in the HCP
handbook to identify exceptions to the
requirement to mitigate in advance of
impacts.
Response: The policy is intended to
provide standards and guidance to
improve consistency of compensatory
mitigation programs and projects for
listed, proposed, and at-risk species.
The preference for advance mitigation is
based on the years of experience with
compensatory mitigation programs. We
realize that in some cases advance
mitigation may not be possible, or even
preferable; however, attempting to
identify exceptions for this preference
would not be reasonable, considering
the vast diversity of species and
programs that would occur across the
country.
Comment (78): Several commenters
were concerned about the draft policy’s
preference for compensatory mitigation
in advance of project impacts. One
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commenter specifically identified that
reclamation of mining operations often
lacks the ability for advanced mitigation
on site. Other commenters cited that:
The process of project permitting and
financing determinations would likely
not allow for advanced mitigation; the
Service should provide incentives such
as higher ratios for ‘‘after impact
mitigation’’; advance mitigation would
be considered pre-decisional; or it is
impossible to provide mitigation in
advance of impacts.
Response: We recognize that project
scheduling and implementing on-site
mitigation may not always align with
the Service’s preference for advance
mitigation; however, conservation
banks, in-lieu-fee programs, and other
third-party mechanisms provide
advanced mitigation options that reduce
timing and other constraints. The
Service’s current practice to recommend
mitigation in advance of impacts under
sections 7 and 10 of the ESA is based
on years of experience in compensatory
mitigation practices. This policy
promotes the development of advanced
mitigation mechanisms, providing more
options for mitigation users. The Service
agrees that mitigation ratios can be used
to incentivize mitigation accomplished
in advance of impacts, but the
discussion of specifics is beyond the
scope of this policy. The Service does
not consider advance mitigation to be
pre-decisional, as the majority of
advance mitigation programs, such as
conservation banking, are established
prior to any impacts, and projects that
will mitigate at such sites may be
unknown at the time of bank
establishment. In all cases, the Service
will evaluate the appropriateness of
using a specific site or proposal as
compensatory mitigation to offset the
unavoidable impacts of a project at the
time the Service reviews the project that
will likely result in the impacts.
O. Eligible Lands
Comment (79): Several commenters
supported mitigation projects and
programs on public lands and wanted
us to add more flexibility to the policy.
One commenter stated that if mitigation
projects and programs occur on public
lands, the land manager should be
prepared to implement and fund
alternative mitigation if a change in law
allows incompatible uses to occur on
mitigation lands. One commenter did
not support mitigation projects and
programs on Federal lands, but was in
favor of it on State lands, and wanted
State lands specifically mentioned in
the policy.
Response: Compensatory mitigation
can occur on public lands, either
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Federal or State lands, and in some
cases, such siting may lead to the best
ecological outcome. Compensatory
mitigation for impacts on public lands
can be sited on both public and private
lands. Compensatory mitigation for
impacts on private lands can be located
on public lands, but it is this
combination, or that particular change
in ownership classification, where
Service staff should be attentive to
additional considerations before making
such a recommendation. These
additional considerations are necessary
to achieve the ‘‘net gain’’ or, at a
minimum ‘‘no net loss,’’ goal of the
policy.
Comment (80): Several commenters
provided comments on split estates.
Commenters said the Service is
arbitrarily limiting areas on which
mitigation can occur by not allowing
lands with split estates to qualify as
mitigation lands; split estates do not
necessarily result in an unsuitable
mitigation site; and the holder of the
rights would have to secure their own
authorization under the ESA from the
Service prior to exercising their rights.
Response: The Service agrees that
there are cases in which lands with split
estates can be used for mitigation. The
policy advises caution because we strive
to ensure the durability of mitigation
projects and programs, but the policy
does mention possible remedies and
that there could be other approaches to
using lands with split estates for
mitigation. A detailed discussion of
remedies and other approaches is not
within the scope of this policy.
P. Tribal Lands/Tribal Rights
Comment (81): We received some
comments regarding the siting of
mitigation projects on tribal lands or on
lands on which tribes hold treaty rights.
One commenter expressed the need for
local mitigation projects to be sited in or
near reservation lands as well as on
traditional off-reservation sites, to
benefit the natural resources of the
native peoples; another commenter was
concerned that locating mitigation
outside of treaty areas for projects that
impact the resources in treaty areas
would harm the treaty rights and the
resources of the tribes. Other
commenters asked that tribes be
consulted in the siting and approval of
mitigation sites and programs. Others
were concerned about the impacts of
habitat restoration and long-term
management on treaty resources.
Response: The Service is committed
to upholding our trust responsibilities to
federally recognized tribes to conserve
shared natural resources, consistent
with the Service’s Native American
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Policy (revised January 2016; see 81 FR
4638, January 27, 2016). This is
accomplished under this policy by
ensuring that mitigation projects and
programs are located in areas that
provide the most benefit to the affected
resources, while respecting treaty rights.
The Service recognizes the importance
of tribal involvement and expertise
when siting mitigation projects and
when developing service areas and
management plans for conservation
banks and other types of mitigation
mechanisms. Specific guidance on
Service coordination with tribes is
beyond the scope of this policy.
Comment (82): We received some
comments requesting specific guidance
on facilitating creation of conservation
banks on tribal lands, comments on
including tribal cultural uses and
practices as allowable uses on
mitigation lands, and a suggestion for
developing mitigation principles similar
to those developed with the USACE in
the State of Washington for specific
mitigation programs.
Response: The Service agrees that
these are all important considerations,
and such guidance and suggestions will
be more effectively addressed in stepdown guidance at a later time.
Comment (83): We received
comments regarding the applicability of
the policy to tribes, or to a specific HCP
under development, and a suggestion
that the Service consult with any tribes
who so request before finalizing this
policy.
Response: The Service notified tribal
contacts when we made the draft policy
available for review and comment (81
FR 61032, September 2, 2016). We
addressed all tribal comments, as
appropriate, as we developed the final
policy. The policy applies to all forms
of compensatory mitigation for all
species and habitat protected under the
ESA and for which the Service has
jurisdiction. The policy is flexible with
regard to its application to specific
mitigation projects or programs that are
under development at the time this
policy is finalized, leaving that decision
to individual Service offices.
Q. Service Areas
Comment (84): Several commenters
requested more detail in the policy
about requirements for developing
service areas.
Response: Specific considerations for
developing service areas are beyond the
scope of this policy and will be
provided in implementation guidance.
R. Credit Bundling
Comment (85): A few commenters
were concerned about credit bundling,
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also known as credit stacking, where
multiple resources exist on the same
unit area. One commenter was
concerned that any resources bundled
or stacked with a listed species would
suffer, as the site would be managed
only for the benefit of the listed species
and not the other resource(s), and
wanted multi-agency review teams to be
aware of this when authorizing
mitigation banks. Other commenters
wanted the Service to make it clear that
credits could potentially be used for
multiple purposes, and another wanted
the Service to allow mitigation credits to
be used to compensate for multiple
impact projects.
Response: The Service encourages
credit bundling where multiple
resources exist on the same unit area
and where management actions benefit
those multiple resources. However,
bundled credits can only be used to
compensate for one impact project (i.e.,
the credits can never be ‘‘unbundled’’ or
‘‘unstacked’’ to compensate for multiple
projects). If two resources, such as a
California red-legged frog (CRLF) and a
wetland regulated pursuant to section
404 of the Clean Water Act are bundled
together in a credit, that credit may be
used to compensate for impacts to both
resources from the same project, or to
compensate for impacts to CRLF or to
wetlands. If the credit were used to
compensate for CRLF, then it can no
longer be used to compensate for
wetlands (i.e., that portion of the credit
is ‘‘retired’’). Unbundling these
functions and services would result in
a net loss of habitat and would
undermine the Service’s efforts to
conserve the species. This approach is
consistent with the policies and
regulations of the USACE, and other
State and Federal agencies the Service
works with on multi-agency-approved
mitigation projects and programs.
S. Mitigation Mechanisms
Comment (86): One commenter
suggested the Benefits of the Draft
Policy section be clarified to include
other mitigation mechanisms that may
not be market-based. The commenter
suggested that the first sentence of the
final paragraph of that section be
modified to read: ‘‘This draft policy
would encourage mitigation in
conjunction with programmatic
approaches to ESA section 7
consultations and HCPs designed to
focus on conservation outcomes that
achieve ‘‘no net loss’’ or ‘‘net gain’’
through the use of market-based
approaches (e.g., conservation banks),
in-lieu fee programs, permitteeresponsible, and other third-party
implemented mitigation programs.’’
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Response: The Service considers that
one of the benefits of this policy is the
opportunity it creates for a market-based
approach to mitigation as highlighted in
the Presidential Memorandum of
November 3, 2015, on Mitigating
Impacts on Natural Resources From
Development and Encouraging Related
Private Investment (80 FR 68743,
November 6, 2015), especially those that
can be established in advance of
impacts. Conservation banking is a
proven example of this approach. The
policy does not preclude the other
mechanisms mentioned by the
commenter. We declined to adopt the
commenter’s suggested sentence.
Comment (87): Several commenters
stated that the draft policy was
confusing and complex, citing the
Service’s definition of compensatory
mitigation being too broad, lack of a
mitigation protocol, and need for a
guidance document to ensure a
separation of regulatory and
nonregulatory authority, goals, and
standards. One comment stated the
complexity of obtaining approval, as
well as cost, for a mitigation site would
discourage investment.
Response: One purpose of the policy
is to provide predictability and thereby
reduce uncertainty of investment for
market-based mitigation programs. We
acknowledge that the nature of existing
compensatory mitigation mechanisms
and programs currently being
implemented is complex. We have
revised the draft policy so that this final
policy addresses overarching goals and
standards only, and we will later
provide more detailed implementation
guidance. However, providing a
mitigation ‘‘protocol’’ that covers the
breadth of species and circumstances
across the country would not be
reasonable. We anticipate species- or
geographic-specific guidance to be
developed under the umbrella of this
policy.
Comment (88): We received two
comments regarding section 7.2, ShortTerm Compensatory Mitigation, in the
draft policy. One comment indicated it
may not be helpful, particularly when
dealing with aquatic species. The other
requested more detail in this section
and stressed it should be more widely
used.
Response: The use of short-term
compensatory mitigation is a novel
approach, with long-term results yet to
be evaluated. The policy fully
acknowledges that it is likely to be
limited in use, for a variety of reasons,
primarily the ability to predict all
temporal losses of an impact in order to
provide an appropriate offset for those
losses. However, the concept may be
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useful in some circumstances. Thus, it
is included in the policy in an effort to
provide additional flexibility to
conserve listed, proposed, and at-risk
species.
Comment (89): Several commenters
requested that the Service express a
preference for conservation bank credits
over other forms of compensatory
mitigation. One commenter requested
the Service add a preference for
rehabilitation or restoration over
preservation and that the Service
prohibit use of alternative forms of
mitigation if conservation bank credits
are available in the same proposed
service area.
Response: As stated in section 6 of
this policy, the appropriate form of
compensatory mitigation must be based
on the species’ needs and the nature of
the impacts adversely affecting the
species. All mitigation tools listed in the
policy are capable of being strategically
sited, consolidated, and provided in
advance of impacts if they are designed
to do so. These preferences will provide
the best outcomes for species when they
are implemented in any mitigation tool,
and, therefore, we have retained
flexibility for applicants when selecting
mitigation tools. We decline to prohibit
the use of alternative forms of mitigation
where conservation bank credits are
available, as that would limit flexibility
and inherent choice of the applicant(s).
T. Climate Change
Comment (90): Several commenters
addressed sections of the draft policy
that referenced climate change for
consideration in mitigation planning.
Some commenters were concerned
about the uncertainty of calculating the
effects of climate change for
compensatory mitigation and the use of
mitigation ratios to address climate
change. One commenter said the policy
should provide more detail on
integrating climate change effects in the
analysis of mitigation programs.
Another requested the basis for the term
‘‘accelerated’’ climate change used in
the policy.
Response: Consistent with the
Departmental Manual (600 DM 6), the
Service recommends that climate
change be considered when evaluating
the effects of an action and developing
appropriate mitigation measures. The
Service recognizes the science of
climate change is advancing, and
assessment methodologies are
continually being refined to address the
effects of climate change to specific
resources and at differing scales.
Including specific information on these
topics is beyond the scope of this
policy. Therefore, the policy is written
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with language to ensure that it does not
become quickly outdated as
methodologies evolve. We use the term
‘‘accelerated climate change’’ in a
general sense to reference a substantial
portion of scientific literature and
scholarly articles on the subject,
including reports produced by the
Intergovernmental Panel on Climate
Change.
The final policy follows:
U.S. Fish and Wildlife Service
Endangered Species Act Compensatory
Mitigation Policy
1. Purposes
This policy adopts the mitigation
principles established in the U.S. Fish
and Wildlife Service (Service)
Mitigation Policy (81 FR 83440,
November 21, 2016), establishes
compensatory mitigation standards, and
provides guidance for the application of
compensatory mitigation through
implementation of the Endangered
Species Act of 1973, as amended (ESA;
16 U.S.C. 1531 et seq.). Compensatory
mitigation (compensation) is defined in
this policy as compensation 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 (600 DM 6.4C). This policy
applies to all Service compensatory
mitigation requirements and
recommendations involving ESA
compliance. It is also intended to assist
other Federal agencies carrying out their
statutory and regulatory responsibilities
under the ESA and to provide
applicants with guidance on the
appropriate use of compensatory
mitigation for proposed actions. The
standards and guidance in the policy
will also assist mitigation providers in
developing compensatory mitigation
project proposals.
Adherence to the principles,
standards, and guidance identified in
this policy is expected to: (1) Provide
greater clarity on applying
compensatory mitigation to actions
subject to ESA compliance
requirements; (2) improve consistency
and predictability in the
implementation of the ESA by
standardizing compensatory mitigation
practices; and (3) promote the use of
compensatory mitigation at a landscape
scale to help achieve the purposes of the
ESA.
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This policy encourages Service
personnel to collaborate with other
agencies, academic institutions,
nongovernmental organizations, tribes,
and other partners to develop and
implement compensatory mitigation
measures and programs through a
landscape-scale approach to achieve the
best possible conservation outcomes for
activities subject to ESA compliance. It
also encourages the use of programmatic
approaches to compensatory mitigation
that have the advantages of advance
planning and economies of scale to: (1)
Achieve a net gain in species’
conservation; (2) reduce the unit cost of
compensatory mitigation; and (3)
improve regulatory procedural
efficiency.
Appendices A and B provide a list of
acronyms and a glossary of terms used
in this policy, respectively.
2. Authorities and Coordination
This policy is focused on
compensatory mitigation that can be
achieved under the ESA. The Service’s
authority to require mitigation is
limited, and our authority to require a
‘‘net gain’’ in the status of endangered
and threatened (listed) or at-risk species
has little or no application under the
ESA. However, we can recommend the
use of mitigation, and in particular
compensatory mitigation, to offset the
adverse impacts of actions under the
ESA. Other statutes also provide the
Service with authority for
recommending compensatory mitigation
for actions affecting fish, wildlife,
plants, and their habitats (e.g., Fish and
Wildlife Coordination Act (FWCA; 16
U.S.C. 661–667e), National
Environmental Policy Act (NEPA; 42
U.S.C. 4321 et seq.), and Oil Pollution
Act (33 U.S.C. 2701 et seq.)). In
addition, statutes such as the Clean
Water Act (CWA; 33 U.S.C. 1251 et seq.)
and Federal Power Act (16 U.S.C. 791a–
828c) provide other Federal agencies
with authority to recommend or require
compensatory mitigation for actions that
result in adverse effects to species or
their habitats. These other authorities
are often used in combination with, or
to supplement the authorities under, the
ESA to recommend or require
compensatory mitigation for a variety of
resources including at-risk species and
their habitats. For example, the ESA and
the Federal Land Policy and
Management Act (43 U.S.C. 1701 et seq.)
together provide a greater impetus to
conserve desert tortoise habitat than
either statute alone.
Synchronizing environmental review
processes, especially through early
coordination with project proponents,
allows the Service to provide comments
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and recommendations for all mitigation
types (i.e., avoidance, minimization,
and compensation) included as part of
proposed actions in an effort to reduce
impacts to listed, proposed, and at-risk
species and designated and proposed
critical habitat. For example, the Service
may comment on proposed actions
under NEPA and State environmental
review statutes (e.g., California
Environmental Quality Act and Hawaii
Environmental Policy Act).
Coordination of environmental review
processes generally results in
conservation outcomes that have a
greater likelihood of meeting the
Service’s mitigation goal.
The supplemental mandate of NEPA
(42 U.S.C. 4335) adds to the existing
authority and responsibility of the
Service to protect the environment
when carrying out our mission under
the ESA. The Service’s goal is to provide
a coordinated review and analysis of the
impacts of proposed actions on listed,
proposed, and at-risk species, and
designated and proposed critical habitat
that are also subject to the requirements
of other statutes such as NEPA, CWA,
and FWCA. Consultation, conference,
and biological assessment procedures
under section 7 and permitting
procedures under section 10(a)(1)(B) of
the ESA can be integrated with
interagency cooperation procedures
required by other statutes such as NEPA
or FWCA. This is particularly the case
for cumulative effects. Cumulative
effects are often difficult to analyze, are
defined differently under different
statutes, and are often not adequately
considered when making decisions
affecting the type and amount of
mitigation recommended or required.
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3. Scope
The ESA Compensatory Mitigation
Policy covers all forms of compensatory
mitigation, including, but not limited to,
permittee-responsible mitigation,
conservation banking, in-lieu fee
programs, and other third-party
mitigation projects or arrangements, for
all species and habitat protected under
the ESA and for which the Service has
jurisdiction. Endangered and threatened
species, species proposed as endangered
or threatened, and designated and
proposed critical habitat, are the
primary focus of this policy. Candidates
and other at-risk species would also
benefit from adherence to the standards
set forth in this policy, and all Service
programs are encouraged to develop
compensatory mitigation programs and
tools to conserve at-risk species in
cooperation with States and other
partners.
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This policy does not apply
retroactively to approved mitigation
programs; however, it does apply to
amendments and modifications to
existing conservation banks, in-lieu fee
programs, and other third-party
compensatory mitigation arrangements
unless otherwise stated in the mitigation
instrument. Examples of amendments or
modifications to which this policy
applies include authorization of
additional sites under an existing
instrument or agreement, expansion of
an existing site, or addition of a new
type of resource credit such as addition
of a new species credit.
This policy does apply to other
Federal or non-Federal actions
permitted or otherwise authorized or
approved prior to issuance of this policy
under circumstances where the action
may require additional compliance
review under the ESA if: New
information becomes available that
reveals effects of the action to listed
species or critical habitat not previously
considered; the action is modified in a
manner that causes effects to listed
species and critical habitat not
previously considered; authorized levels
of incidental take are exceeded; a new
species is listed or critical habitat is
designated that may be affected by the
actions; or the project proponent
specifically requests the Service to
apply the policy. This policy does not
apply to actions that are specifically
exempted under the ESA. It also does
not apply where the Service has already
agreed in writing to mitigation measures
for pending actions, except where new
activities or changes in current activities
associated with those actions would
result in new impacts, or where new
authorities, or failure to implement
agreed upon recommendations warrant
new consideration regarding mitigation.
Service offices may elect to apply this
policy to actions that are under review
as of December 27, 2016,
This policy clarifies guidance given in
the Service’s ‘‘Guidance for the
Establishment, Use, and Operation of
Conservation Banks,’’ published in the
Federal Register on May 8, 2003 (68 FR
24753), and ‘‘Guidance on Recovery
Crediting for the Conservation of
Threatened and Endangered Species,’’
published in the Federal Register on
July 31, 2008 (73 FR 44761).
authorities within the context of
compensatory mitigation. The
compensatory mitigation standards set
forth in section 5. Compensatory
Mitigation Standards of this policy
apply to compensatory mitigation
programs and projects established under
the ESA, as appropriate.
4. Application of Compensatory
Mitigation Under the ESA
Sections of the ESA under which the
Service has authority to recommend or
require compensatory mitigation for
species or their habitat are identified
below. In this section, we provide
guidance on applications of these ESA
4.1.1. Section 7(a)(1)
Section 7(a)(1) of the ESA states,
‘‘. . . Federal agencies shall, in
consultation with and with the
assistance of the Secretary, utilize their
authorities in furtherance of the
purposes of [the ESA] by carrying out
programs for the conservation of
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4.1. Section 7—Interagency Cooperation
Section 2(c)(1) of the ESA directs all
Federal departments and agencies to
conserve endangered and threatened
species. ‘‘Conserve’’ is defined in
section 3 of the ESA as all actions
necessary to bring the species to the
point that measures provided pursuant
to the ESA are no longer necessary (i.e.,
recovery or the process through which
recovery of listed species is
accomplished). This requirement to
contribute to the conservation of listed
species is reaffirmed in section 7(a)(1) of
the ESA. Congress recognized the
important role Federal agencies have in
conserving listed species.
When the ESA was enacted in 1973,
section 7 was a single paragraph
directing ‘‘all Federal departments and
agencies . . . [to] utilize their
authorities in furtherance of the
purposes of [the ESA] by carrying out
programs for the conservation of
endangered species and threatened
species listed pursuant to section 4 of
[the ESA] and [emphasis added] by
taking such action necessary to insure
that actions authorized, funded, or
carried out by them do not jeopardize
the continued existence of such
endangered species and threatened
species or result in the destruction or
modification of habitat of such species
which is determined . . . to be critical.’’
In 1979, section 7 was amended to
create subsections 7(a)(1) and 7(a)(2).
Federal agencies have separate
responsibilities concerning species and
their habitats under these two
subsections. Section 7(a)(1) is a recovery
measure that requires Federal agencies
to carry out programs for the
conservation of listed species. Section
7(a)(2) is a stabilization measure that
requires Federal agencies to ensure
actions they authorize, fund, or carry
out are not likely to jeopardize the
continued existence of a listed species
or destroy or adversely modify critical
habitat.
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endangered species and threatened
species.’’ The Secretary’s section 7(a)(1)
consultation role has been delegated to
the Service, and the Service therefore
consults with and assists Federal
agencies to accomplish these
conservation programs. ‘‘Conservation,’’
as it is defined in section 3 of the ESA,
means ‘‘to use and the use of all
methods and procedures which are
necessary to bring any endangered
species or threatened species to the
point at which the measures provided
pursuant to this Act are no longer
necessary.’’ Through this policy, the
Service encourages Federal agencies to
use section 7(a)(1) to achieve a goal of
a ‘‘net gain’’ through their mitigation
policies and approaches so that they
may help bring endangered and
threatened species to the point where
they no longer need to be listed
pursuant to the ESA.
Mitigation Goal: Development of
landscape-scale conservation programs
for listed and at-risk species that are
designed to achieve a net gain in
conservation for the species.
Guidance: One way that Federal
agencies can meet their responsibility
under section 7(a)(1) of the ESA is by
working with the Service and other
conservation partners to develop
landscape-scale conservation plans that
include compensatory mitigation
programs designed to contribute to
species recovery. Landscape-scale
approaches to compensatory mitigation,
such as conservation banking and inlieu fee programs, are more likely to be
successful if Federal agencies,
especially those that carry out, fund,
permit, or otherwise authorize actions
that can use these programs, are
involved in their establishment and
support their use. For example, the
Federal Highway Administration, as
part of its long-term planning process,
can use its authorities to work with the
Service and other conservation partners
on conservation programs for listed
species that may be impacted by
anticipated future actions. The
conservation programs can include
identifying priority conservation areas,
developing crediting methodologies to
value affected species, and developing
guidance for offsetting those impacts
that is expected to achieve ‘‘no net
loss,’’ or even a ‘‘net gain,’’ in
conservation for the species. These tools
and information can then be used by
conservation bank sponsors and other
mitigation providers to develop
compensatory mitigation opportunities
(e.g., conservation banks) for use by the
Federal Highway Administration, and
also by State departments of
transportation and other public and
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private entities seeking compensation to
offset the impacts of their actions for
those same species. The resulting
compensatory mitigation program
provides conservation for the species
that would otherwise not have been
achieved—a contribution to listed
species conservation under section
7(a)(1) of the ESA by the Federal agency.
4.1.2. Section 7(a)(2)
Section 7(a)(2) of the ESA states,
‘‘[e]ach Federal agency shall . . . insure
that any action authorized, funded, or
carried out, by such agency . . . is not
likely to jeopardize the continued
existence of any endangered species or
threatened species or result in the
destruction or adverse modification of
[critical] habitat.’’ The Service
determines through consultation under
section 7(a)(2) whether or not the
proposed action is likely to jeopardize
the continued existence of listed species
or destroy or adversely modify critical
habitat. The Service then issues a
biological opinion stating our
conclusion and, in the case of a finding
of no jeopardy (or jeopardy
accompanied by reasonable and prudent
alternatives that can be taken by the
Federal agency to avoid jeopardy),
formulates an incidental take statement,
if such take is reasonably certain to
occur, that identifies the anticipated
amount or extent of incidental take of
listed species and specifies reasonable
and prudent measures necessary or
appropriate to minimize such impacts
under section 7(b)(4) of the ESA. If the
proposed action is likely to adversely
affect critical habitat, the Service’s
biological opinion also analyzes
whether adverse modification is likely
to occur and specifies reasonable and
prudent alternatives to avoid adverse
modification, as necessary and if
available. If the listed species is a
marine mammal, incidental taking is
authorized pursuant to section 101(a)(5)
of the Marine Mammal Protection Act
(MMPA; 16 U.S.C. 1361 et seq.) prior to
issuance of an incidental take statement
under the ESA.
Mitigation Goal: The Service should
work with Federal agencies to assist
them in proposing actions that are not
likely to jeopardize the continued
existence of any listed species or result
in the destruction or adverse
modification of any designated critical
habitat, as required under section 7(a)(2)
of the ESA. While not required under
section 7(a)(2), the Service may also
encourage Federal agencies and
applicants (consistent with Federal
action agency authorities) to include
compensation as part of their proposed
actions to offset any anticipated impacts
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to these resources that are not avoided
to achieve a ‘‘net gain’’ or, at a
minimum, ‘‘no net loss’’ in the
conservation of listed species.
Guidance: The Service should
coordinate with Federal agencies and
encourage them to use their authorities
under appropriate statutes (e.g., Federal
Land Policy and Management Act) to
avoid, minimize, and offset adverse
impacts to listed species and designated
critical habitat using the full mitigation
sequence. Compensation is a component
of the mitigation sequence that can be
applied to offset adverse effects of
actions on listed species and critical
habitat. Furthermore, the Service can
work with Federal agencies to establish
compensatory mitigation programs such
as conservation banking and in-lieu fee
programs that incentivize offsetting the
effects of their actions through the
appropriate use of compensation while
expediting regulatory processes for the
Federal agencies and applicants. Due to
economies of scale, such mitigation
programs are particularly effective at
providing more effective and costefficient compensation opportunities for
offsetting the effects of multiple actions
that individually have small impacts.
4.1.2.1. Proposed Actions and Project
Descriptions
To better implement section 7(a)(2) of
the ESA and prevent species declines,
the Service will work with Federal
agencies and applicants to identify
conservation measures, using the full
mitigation sequence, that can be
included as part of proposed actions for
unavoidable impacts to listed species
and critical habitat to achieve, at a
minimum, ‘‘no net loss’’ in the species’
conservation. The mitigation sequence
should be observed (i.e., avoid first,
then minimize, then compensate),
except where circumstances may
warrant a departure from this preferred
sequence. For example, it may be
preferable to compensate for the loss of
an occupied site that will be difficult to
maintain based on projected future land
use (e.g., the site is likely to be isolated
from the population in the future) or
climate change impacts. The Service
will consider conservation measures,
including compensatory mitigation, as
appropriate, proposed by the action
agency or applicant as part of the
proposed action when developing a
biological opinion addressing the effects
of the proposed action on listed species
and critical habitat. This consideration
of beneficial actions (i.e., compensatory
mitigation) is consistent with our
implementing regulations at 50 CFR
402.14(g)(8). Federal agencies should
coordinate early with the Service on the
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appropriateness of such beneficial
actions as compensation for anticipated
future actions.
4.1.2.2. Jeopardy or Adverse
Modification Determinations and RPAs
When the Service issues a biological
opinion with a finding of jeopardy or
adverse modification of critical habitat,
we include reasonable and prudent
alternatives (RPAs) when possible.
RPAs may include any and all forms of
mitigation, including compensatory
mitigation, that can be applied to avoid
proposed actions from jeopardizing the
existence of listed species or destroying
or adversely modifying critical habitat,
provided they are consistent with the
regulatory definition of RPAs at 50 CFR
402.02.
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4.1.2.3. No Jeopardy and No Adverse
Modification Determinations and RPMs
When the Service issues a biological
opinion with a finding of no jeopardy,
we provide the Federal agency and
applicant (if any) with an incidental
take statement, if take is reasonably
certain to occur, in accordance with
section 7(b)(4) of the ESA. The
incidental take statement specifies the
amount or extent of anticipated take, the
impact of such take on the species, and
any reasonable and prudent measures
(RPMs) and implementing terms and
conditions determined by the Service to
be necessary or appropriate to minimize
the impact of the take.
RPMs can include mitigation, in
appropriate circumstances, if such a
measure minimizes the effect of the
incidental take on the species, and as
long as the measure is consistent with
the interagency consultation regulations
at 50 CFR 402.14. RPMs should also be
commensurate with and proportional to
the impacts associated with the action.
The Service should provide an
explanation of why the measures are
necessary or appropriate. If the
proposed action includes conservation
measures sufficient to fully compensate
for incidental take, it may not be
necessary to include additional
minimization measures (beyond
monitoring) through RPMs.
4.1.3. Section 7(a)(4)
Section 7(a)(4) of the ESA states,
‘‘[e]ach Federal agency shall confer with
[the Service] on any agency action
which is likely to jeopardize the
continued existence of any species
proposed to be listed . . . or result in the
destruction or adverse modification of
critical habitat proposed to be
designated for such species.’’ The
conference is designed to assist the
Federal agency and any applicant to
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required should the species become
listed during the term of the CCAA.
Under a safe harbor agreement (SHA),
private and other non-Federal property
owners may voluntarily undertake
management activities on their property
to enhance, restore, or maintain habitat
benefiting species listed under the ESA
in exchange for assurances that there
will not be any increased property use
restrictions as a result of their efforts
that either attract listed species to their
property or that increase the numbers or
distribution of listed species already on
their property during the term of the
agreement. Both types of agreements are
designed to encourage conservation of
species on non-Federal land.
Mitigation Goal: Transitioning CCAAs
and SHAs into long-term/permanent
conservation that can serve as
compensatory mitigation when
appropriate and desired by landowners.
Such transitions provide greater
assurance that the species conservation
efforts begun under the CCAA or SHA
will persist on the landscape beyond the
term of the original agreement.
Guidance: CCAAs or SHAs are not
intended to be mitigation programs and
do not require site protection and
financial assurances that meet the
compensatory mitigation standards set
forth in this policy, however, the
conservation achieved through
implementation of a CCAA or SHA may
be ‘rolled over’ for use as compensatory
mitigation if: (1) The CCAA or SHA
permit has expired or is surrendered; (2)
the landowner is in compliance with the
terms and conditions of the CCAA or
SHA at the time of transition; (3) any
commitments for conservation for
which financial compensation from
public sources was received has been
fulfilled and if not fulfilled is prorated
and deducted from the mitigation credit
assigned to the property; and (4) all
other requirements for providing
compensatory mitigation are met. If the
Service determines the CCAA or SHA
would provide greater conservation to
4.2. Section 10—Conservation Plans and the species as compensatory mitigation,
then the Service should inform the
Agreements
landowner of this assessment and
4.2.1. Safe Harbor and Candidate
provide the landowner with the
Conservation Agreements
opportunity to transition their property
Under a candidate conservation
from a CCAA or SHA site to a mitigation
agreement with assurances (CCAA),
site.
Landowners enrolled in CCAAs while
private and other non-Federal property
the species remains unlisted can
owners may voluntarily undertake
provide compensatory mitigation under
conservation management activities on
a State or other non-Service mitigation
their properties to address threats to
unlisted species and to enhance, restore, program if the actions related to the
mitigation are additional to those taken
or maintain habitat benefiting species
to satisfy the CCAA requirement.
that are candidates or proposed for
Should the species become listed before
listing under the ESA or other at-risk
the CCAA expires, the landowner has
species in exchange for assurances that
the option to roll over the existing
no further action on their part is
identify and resolve potential conflicts
at an early stage in the planning process.
Mitigation Goal: The Service should
work with Federal agencies to assist
them in proposing actions that are not
likely to jeopardize the continued
existence of any species proposed for
listing or result in the destruction or
adverse modification of any proposed
critical habitat, in accordance with
section 7(a)(4) of the ESA. The Service
should also encourage Federal agencies
and applicants to include compensation
as part of their proposed actions to
offset any anticipated impacts to
resources that are not avoided to
achieve a net gain or, at a minimum, no
net loss in their conservation.
Guidance: The Service should
coordinate with Federal agencies and
encourage them to use their authorities
to avoid and minimize adverse impacts
to proposed and at-risk species and
proposed critical habitat using the full
mitigation sequence. The Service may
recommend compensatory mitigation
for adverse effects to proposed or at-risk
species during informal conference or in
a conference report or conference
opinion, or the Federal action agency or
applicant may propose compensatory
mitigation as part of the action. If a
conference opinion or report determines
that a proposed action is likely to
jeopardize the continued existence of a
proposed species or adversely modify or
destroy proposed critical habitat, the
Service will include RPAs, if any are
available, that may include
compensatory mitigation. If the species
is subsequently listed or critical habitat
is designated prior to completion of the
action, the Service will give appropriate
consideration to compensatory
mitigation when confirming the
conference opinion as a biological
opinion or if formal consultation is
necessary. This consideration of
beneficial actions is consistent with our
implementing regulations at 50 CFR
402.14(g)(8).
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mitigation agreement to a Serviceapproved mitigation instrument that
meets the standards established in this
policy.
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4.2.2. Habitat Conservation Plans
Section 10(a)(1)(B) of the ESA allows
the Service to issue an incidental take
permit for ‘‘any taking otherwise
prohibited by section 9(a)(1)(B) [of the
ESA] if such taking is incidental to, and
not the purpose of, the carrying out of
an otherwise lawful activity.’’ If, under
section 10(a)(2)(B) of the ESA, the
Service finds the issuance criteria are
met by the applicant, including that the
applicant will, ‘‘to the maximum extent
practicable, minimize and mitigate the
impacts of such taking,’’ the Service will
issue a permit. Plant species and
unlisted animal species may also be
covered in the habitat conservation plan
(HCP), provided the applicant meets
requirements for their coverage
described in the implementing
regulations. The Service incorporates
these measures as terms and conditions
of the permit. Regulations governing
incidental take permits for endangered
and threatened wildlife species are
found at 50 CFR 17.22 and 17.32. The
Service is required to conduct a section
7(a)(2) consultation on issuance of an
incidental take permit.
Mitigation Goal: Consistent with the
purposes and polices of the ESA, the
Service should work with applicants to
assist them in developing HCPs that
achieve a ‘‘net gain’’ or, at a minimum,
‘‘no net loss’’ in the conservation of
covered species and critical habitat.
Though the statute does not require this
of HCP applicants, applicants often will
request additional measures for greater
future assurances. This is generally
achievable through programmatic
approaches, which provide
opportunities for the use of landscapescale compensatory mitigation programs
to offset impacts of actions.
Guidance: Compensatory mitigation
should be concurrent with or in advance
of impacts, whenever possible.
Programmatic approaches are
recommended when they will produce
regulatory efficiency and improved
conservation outcomes for the covered
species. These HCPs operate on a
landscape scale and often use
conservation banks, in-lieu fee
programs, or other compensatory
mitigation opportunities established by
mitigation sponsors and approved by
the Service. These landscape-scale
programmatic approaches can achieve a
net gain in conservation for the covered
species as a result of economies of scale.
See the revised HCP Handbook for the
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various options available to address
compensatory mitigation for HCPs.
4.3. Other Sections of the ESA Where
Compensatory Mitigation Can Play a
Role
Section 4(d) of the ESA authorizes the
Service to issue protective regulations
that are necessary and advisable to
provide for the conservation of
threatened species. The Service used
this authority to extend the prohibition
of take (section 9 of the ESA) to all
threatened species by regulation in
1978, through promulgation of a
‘‘blanket 4(d) rule’’ (50 CFR 17.31). This
blanket 4(d) rule can be modified by a
species-specific 4(d) rule (e.g., Special
Rule Concerning Take of the Threatened
Coastal California Gnatcatcher (58 FR
65088, December 10, 1993)). Depending
on the threats, the inclusion of
compensatory mitigation in a speciesspecific 4(d) rule may help offset habitat
loss, and could hasten recovery or
preclude the need to reclassify the
species as endangered.
Section 5 of the ESA provides
authority for the Service and the U.S.
Department of Agriculture, with respect
to the National Forest System, to
establish and implement a program to
conserve fish, wildlife, and plants,
including those which are listed as
endangered species or threatened
species through:
• Use of land acquisition and other
authority under the Fish and Wildlife
Act of 1956, as amended (16 U.S.C.
742a–742j, not including 742d–1); the
Fish and Wildlife Coordination Act, as
amended (16 U.S.C. 661 et seq.); and the
Migratory Bird Conservation Act (16
U.S.C. 715–715d, 715e, 715f–715r), as
appropriate; and
• Acquisition by purchase, donation,
or otherwise, of lands, waters, or
interests therein.
Establishment of compensatory
mitigation programs that conserve listed
or at-risk species on lands adjacent to
National Forests could be used to offset
losses to those species and their habitats
by actions authorized by the Service and
also help buffer National Forests from
incompatible neighboring land uses.
5. Compensatory Mitigation Standards
The mitigation principles, as
described in the Service’s Mitigation
Policy (81 FR 83440, November 21,
2016), are goals the Service intends to
achieve, in part through recommending
or requiring, as appropriate, under the
ESA and other applicable authorities,
the inclusion of compensatory
mitigation in proposed actions with
adverse impacts to listed, proposed, or
at-risk species, and designated or
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proposed critical habitat. The
compensatory mitigation standards
described in this section of the policy
will implement the mitigation
principles, as outlined in the Mitigation
Policy, including using a landscape
approach to inform mitigation and
aspiring to meet the goal 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.
Compensatory mitigation programs,
projects, and measures that are
consistent with the mitigation
principles and adhere to the
compensatory mitigation standards set
forth in this section of the policy are
expected to achieve the best
conservation outcomes. The
compensatory mitigation standards
apply to all compensatory mitigation
mechanisms (i.e., permittee-responsible
mitigation, conservation banks, in-lieu
fee programs, etc.) and all forms of
compensatory mitigation (i.e.,
restoration, preservation, establishment,
and enhancement) approved by the
Service. Specific operational details
regarding the standards will be in the
implementation guidance to be issued
by the Service. The standards are as
follows:
5.1. Siting Sustainable Compensatory
Mitigation
Compensatory mitigation will be sited
in locations that have been identified in
landscape-scale conservation plans or
mitigation strategies as areas that will
meet conservation objectives and
provide the greatest long-term benefit to
the listed, proposed, and/or at-risk
species and other resources of primary
conservation concern. The Service will
rely upon existing conservation plans
that are based upon the best available
scientific information, consider climatechange 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.
5.2. In-Kind for Species
Compensatory mitigation must be inkind for the listed, proposed, or at-risk
species affected by the proposed action.
The same requirement does not
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necessarily apply to the habitat type
affected, as the best conservation
outcome for the species may not be an
offset of the same habitat type or
ecological attribute of the habitat
impacted by the action. Many species
use different habitat types at different
life stages or for different life-history
requirements such as feeding, breeding,
and sheltering. For example, some
species are migratory. Selecting a
habitat type different from that
impacted by the action or selecting more
than one type of habitat for
compensatory mitigation may best meet
the conservation needs of the species.
Offsetting impacts to designated or
proposed critical habitat through the use
of compensatory mitigation should
target the maintenance, restoration, or
improvement of the recovery support
function of the affected critical habitat
as described in the relevant biological or
conference opinion, conservation or
mitigation plan, mitigation instrument,
permit, or conference report. Recovery
plans, 5-year reviews, proposed and
final critical habitat rules, and the best
available science on species status,
threats, and needs should be relied on
to inform the selection of habitat types
subject to compensatory mitigation
actions for unavoidable adverse impacts
to species or critical habitat.
The use of compensatory mitigation to
minimize the impacts of incidental take
on listed species can be based on habitat
or another surrogate such as a similarly
affected species or ecological conditions
under circumstances where it is not
practicable to express or monitor the
amount or extent of take in terms of the
number of individuals of the species, in
accordance with 50 CFR 402.14(i)(1)(i).
A causal link between the surrogate and
take of the species must be explained
and must be scientifically defensible.
For example, occupied habitat of a
listed species has been used as a
surrogate to express the amount or
extent of take of the vernal pool fairy
shrimp (Branchinecta lynchi) because
quantification of take in terms of
individuals is not practicable, but the
surface area of occupied vernal pool
habitat is easily measured and
monitored.
5.3. Reliable and Consistent Metrics
Metrics that measure ecological
functions and/or services at
compensatory mitigation sites and
impact sites must be science-based,
quantifiable, consistent, repeatable, and
related to the conservation goals for the
species. These metrics may be speciesor habitat-based. Metrics used to
calculate credits should be the same as
those used to calculate debits for the
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same species or habitat type. If they are
not the same, the relationship
(conversion) between credits and debits
must be transparent and scientifically
defensible. Metrics must account for
duration of the impact, temporal loss to
the species, management of risk
associated with compensatory
mitigation, and other such measures.
This does not mean that metrics
developed to measure losses and gains
on the landscape must be precise, as
this is rarely possible in biological
systems, but uncertainty should be
noted where it exists and metrics must
be based on the best scientific data
available to gauge the adequacy of the
compensatory mitigation. Modifying
existing metrics on which approved
conservation banks or other
compensatory mitigation programs are
based and still in use warrants careful
consideration and must be based on best
available science.
Scientifically defensible metrics also
are needed to measure biological and
ecological performance criteria used to
monitor the outcome of compensatory
mitigation. It may be necessary to adjust
metrics over time through monitoring
and adaptive management processes in
order to respond to changing conditions
and ensure they remain effective at
assessing the conservation objectives of
the compensatory mitigation program.
However, modifying metrics used to
monitor performance should not be a
substitute for lack of compliance or
failure to implement adaptive
management.
5.4. Judicious Use of Additionality
Compensatory mitigation must
provide benefits beyond those that
would otherwise have occurred through
routine or required practices or actions,
or obligations required through legal
authorities or contractual agreements. A
compensatory mitigation measure is
‘‘additional’’ when the benefits of the
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
(600 DM 6.4G). The additional benefits
may result from restoration or
enhancement of habitat; preservation of
existing habitat that lacks adequate
protection; management actions that
protect, maintain, or create habitat (e.g.,
regularly scheduled prescribed burns or
purchase of rights in a split estate); or
other activities (e.g., an action that
reduces threats from disease or
predation, or captive breeding and
reintroduction of individuals or
populations). Baseline conditions for
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the habitat relevant to the species must
be assessed prior to implementing the
compensatory mitigation project for
comparison to conditions after
completion of the compensatory
mitigation project in order to quantify
and verify the additional benefits
derived from the mitigation project.
Demonstrating additionality on lands
already designated for conservation
purposes can be challenging,
particularly when the lands under
consideration are public lands. In
general, credit can only be authorized
for compensatory mitigation on public
lands if additionality can be clearly
demonstrated and is legally attainable.
See section 6.2. Eligible Lands for
guidance on using public lands for
compensatory mitigation.
5.5. Timing and Duration
Compensatory mitigation projects
must achieve conservation objectives
within a reasonable timeframe and for at
least the duration of the impacts.
Ideally, compensatory mitigation should
be implemented in advance of the
action that adversely impacts the
species or critical habitat. When this is
not possible or practicable, temporal
losses to the affected species must be
compensated through some means (e.g.,
increased mitigation ratio that reflects
the degree of temporal loss). Temporal
loss may include indirect effects of the
action on the species that occur beyond
the time period of any direct effects of
the action (e.g., removal of habitat
during a season when individuals of a
migratory species are absent). Temporal
loss to the species as a result of both
direct and indirect adverse effects must
be addressed when determining
appropriate compensatory mitigation.
Losses of habitat that require many
years to restore may best be offset by a
combination of restored habitat,
preservation of existing high-quality
habitat, and improved management of
existing habitat. The amount of
temporal loss, the form of compensatory
mitigation (i.e., establishment,
enhancement, restoration, preservation,
or some combination of these forms),
and the time anticipated to establish the
compensatory mitigation on the
landscape should be used to determine
the amount of compensatory mitigation
needed to meet the mitigation goal for
the species, critical habitat, and/or other
resources of concern.
5.6. Ensure Durability
Compensatory mitigation must be
secured by adequate legal, real estate,
and financial protections that ensure the
success of the mitigation. Most
compensatory mitigation projects are
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permanent, and the viability of the
assurances to achieve long-term
stewardship of a mitigation site must be
carefully planned and implemented to
ensure durability. A compensatory
mitigation measure is ‘‘durable’’ when
the effectiveness of the measure is
sustained for the duration of the
associated impacts (including direct and
indirect impacts) of the authorized
action (600 DM 6.4H).
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5.7. Effective Conservation Outcomes
and Accountability
The Service has authority to conduct
direct oversight of all compensatory
mitigation programs and projects for
which we have exempted or permitted
incidental take under the ESA. A
standard condition of HCP incidental
take permits provides for such
oversight. Incidental take exemptions
provided by statute to Federal agencies
and applicants through the ESA section
7 process require that mandatory terms
and conditions included with the take
statement must be implemented by the
Federal agency or its applicant to
activate the exemption in 7(o)(2) of the
Act. Should a mitigation project fail to
meet its performance criteria and
therefore fail to provide the expected
conservation for the species, the
responsible party must provide
equivalent compensation through other
means.
5.8. Encourage Collaboration
Successful landscape-scale
compensatory mitigation depends on
the engagement of affected communities
and stakeholders. Governments,
communities, organizations, and
individuals support what they help to
develop. The Service will provide
opportunities for and encourage
appropriate stakeholder participation in
development of landscape-scale
compensatory mitigation strategies that
affect listed, proposed, and at-risk
species, and proposed and designated
critical habitat through appropriate
public processes such as those used for
programmatic habitat conservation
plans (HCPs). Programmatic approaches
to compensatory mitigation programs
for at-risk species are also encouraged,
particularly when led by State agencies,
and the Service will make every effort
to participate in the planning,
establishment, and operation of such
programs as described in our draft
Policy Regarding Voluntary Prelisting
Conservation Actions (79 FR 42525, July
22, 2014). The Service’s regional and
field offices will determine or assist in
determining, as appropriate, the level
and methods of public participation
using transparent processes.
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5.9. Maintain Transparency and
Predictability
Consistent implementation of ESA
programs that permit or authorize
incidental take of listed species will
provide regulatory predictability for
everyone. The Service will share
appropriate information on the
availability of compensatory mitigation
programs and projects with the public
through online media or other
appropriate means. Information
regarding conservation banks is
available on the Regulatory In-lieu fee
and Bank Information Tracking System
(RIBITS) (https://ribits.usace.army.mil).
The Service anticipates working with
the USACE to update RIBITS so that it
may be used for our in-lieu fee
programs. Similar information for
habitat credit exchanges and other thirdparty sponsored mitigation projects, or
when it is not otherwise possible to use
RIBITS, must be made publicly
accessible.
6. General Considerations
Specific operational details, in
addition to the information provided
below in this section, will be in
implementation guidance issued by the
Service.
6.1. Preferences
The appropriate form of
compensatory mitigation (i.e.,
preservation, restoration, enhancement,
establishment, or a combination of some
or all of these forms) must be based on
the species’ needs and the nature of the
impacts adversely affecting the species.
The Service has the following general
preferences related to compensatory
mitigation.
6.1.1. Preference for Strategically Sited
Compensatory Mitigation
Preference shall be given to
compensatory mitigation projects sited
within the boundaries of priority
conservation areas identified in existing
landscape-scale conservation plans as
described in the Service’s Mitigation
Policy (81 FR 83440, November 21,
2016). Priority conservation areas for
listed species may be identified in
documents such as species status
assessments, recovery plans, and/or 5year reviews.
6.1.2. Preference for Compensatory
Mitigation in Advance of Impacts
After following the principles and
standards outlined in this policy and all
other considerations being equal,
preference will be given to
compensatory mitigation projects
implemented in advance of impacts to
the species. Mitigation implemented in
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advance of impacts reduces risk and
uncertainty. Demonstrating that
mitigation is successfully implemented
in advance of impacts provides
ecological and regulatory certainty that
is rarely matched by a proposal of
mitigation to be accomplished
concurrent with, or subsequent to, the
impacts of the actions even when that
proposal is supplemented with higher
mitigation ratios. While conservation
banking is by definition mitigation in
advance of impacts, other third-party
mitigation arrangements and permitteeresponsible mitigation may also satisfy
this preference by implementing
compensatory mitigation in advance of
impacts. In-lieu fee programs can also
satisfy this preference through a ‘‘jump
start’’ that achieves and maintains a
supply of credits that offer mitigation in
advance of impacts.
6.1.3. Preference for Consolidated
Compensatory Mitigation
Mitigation mechanisms that
consolidate compensatory mitigation on
the landscape, such as conservation
banks and in-lieu fee programs, are
generally preferred to small, disjunct
compensatory mitigation sites spread
across the landscape. Consolidated
mitigation sites generally have several
advantages over multiple, small,
isolated mitigation sites. These
advantages include:
• Avoidance of a piecemeal approach
to conservation efforts that often results
in small, non-sustainable parcels of
habitat scattered throughout the
landscape;
• Sites that are usually a component
of a landscape-level strategy for
conservation of high-value resources;
• Cost effective compensatory
mitigation options for small projects,
allowing for effective offsetting of the
cumulative adverse effects that result
from numerous, similar, small actions;
• An increase in public-private
partnerships that plan in advance and a
landscape-scale approach to mitigation
to provide communities with
opportunities to conserve highly valued
natural resources while still allowing for
community development and growth;
• Greater capacity for bringing
together financial resources and
scientific expertise not practicable for
small conservation actions;
• Economies of scale that provide
greater resources for design and
implementation of compensatory
mitigation sites and a decreased unit
cost for mitigation;
• Improved administrative and
ecological compliance through the use
of third-party oversight;
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• Greater regulatory and financial
predictability for project proponents,
greatly reducing the uncertainty that
often causes project proponents to view
compensatory mitigation as a burden;
and
• Expedited regulatory compliance
processes, particularly for small
projects, saving all parties time and
money.
6.2. Eligible Lands
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6.2.1. Lands Eligible for Use as
Compensatory Mitigation
Compensatory mitigation sites may be
established by willing parties on
private, public, or tribal lands that
provide the maximum conservation
benefit for the listed, proposed, and atrisk species and other affected
resources. Maintaining the same
classification of land ownership
between the impact area and mitigation
site may be important in preventing a
long-term net loss in conservation, in
particular a reduction in the range of the
species. Because most private lands are
not permanently protected for
conservation and are generally the most
vulnerable to development actions, the
use of private lands for mitigating
impacts to species occurring on any
type of land ownership is usually
acceptable as long as durability can be
ensured. Locating compensatory
mitigation on public lands for impacts
to species on private lands is also
possible, and in some circumstances
may best achieve the conservation
objectives for species, but should be
carefully considered—see section 6.2.2.
Use of Public Land to Mitigate Impacts
on Private Land for additional guidance.
Good candidates for compensatory
mitigation sites are unprotected lands
that are high value for conservation and
that are acceptable to the Service.
Designations of high conservation value
may include lands with existing highvalue habitat or habitat that when
restored, enhanced, established, or
properly managed will provide high
value to the species. In addition to these
general considerations, lands that may
be good candidates for compensatory
mitigation sites include:
• Lands previously secured through
easements or other means but that lack
the full complement of protections
necessary to conserve the species (e.g.,
buffer lands for a military installation
that do not include management, or
private lands with existing conservation
easements for which landowners have
not received financial compensation
from public sources or regulatory
assurances from the Service.);
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• Lands adjacent to undeveloped,
protected public lands such as National
Wildlife Refuges or State Wildlife
Management Areas;
• Private lands enrolled in programs
that provide financial compensation
from public sources to landowners in
exchange for agreements that protect,
restore, or create habitat for federally
listed or at-risk species for a limited
period of time, such as the Service’s
Partners for Wildlife Program or some
Farm Bill programs (e.g., Environmental
Quality Incentives Program) if
additional conservation benefits are
provided above and beyond the terms
and conditions of the agreement or if the
agreement/easement has expired; and
• Private lands enrolled in programs
that provide regulatory assurances to the
landowner such as SHAs or CCAAs that
can be transitioned into compensatory
mitigation, after all terms and
conditions of the agreement have been
met and the agreement has expired or
the permit is surrendered in exchange
for a mitigation instrument (see section
4.2.1. Safe Harbor and Candidate
Conservation Agreements for additional
guidance).
See section 5.1. Siting Sustainable
Compensatory Mitigation for other
considerations when selecting a site
suitable for compensatory mitigation.
Lands that generally do not qualify as
compensatory mitigation sites include:
• Lands without clear title unless the
existing encumbrances (e.g., liens,
rights-of-way) are compatible with the
objectives of the mitigation site or can
be legally removed or subordinated;
• Split estates (i.e., lands that have
separate owners of various surface and
subsurface rights, usually mineral
rights), unless a remedy can be found
(see below for guidance on split estates);
• Private or public lands already
designated for conservation purposes,
unless the proposed compensatory
mitigation project would add additional
conservation benefit for the species
above and beyond that attainable under
the existing land designation;
• Private lands enrolled in
government programs that compensate
landowners who permanently protect,
restore, or create habitat for federally
listed or at-risk species (e.g., Wetland
Reserve Program easements
administered by the United States
Department of Agriculture’s Natural
Resources Conservation Service);
• Inventory and debt restructure
properties under the Food Security Act
of 1985 (16 U.S.C. 3801 et seq.); and
• Lands protected or restored for
conservation purposes under fee title
transfers.
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Additional guidance on limitations
involving Federal funding and
mitigation, including grants, is provided
in the Service’s Mitigation Policy (81 FR
83440, November 21, 2016).
Lands with split estate ownership and
laws and policies governing existing
rights (e.g., mining laws) may prevent
land protection instruments (e.g.,
permanent conservation easements)
from providing sufficient protection
from future development of mineral
rights, including oil and gas exploration
or development. Many potential highvalue conservation properties
throughout the United States are split
estates. The risk of using split estate
properties as compensatory mitigation
should be carefully considered. When
legal remedies to restore single
ownership are not possible or
practicable, other approaches to
managing the risks may be available to
bolster durability on split estates. A
mineral deed acquisition, mineral
assessment report, or subsurface use
agreement are a few of the options for
managing mineral rights on
compensatory mitigation sites that
provide varying levels of protection
(Raffini 2012). Service personnel tasked
with assessing the viability of split
estates as mitigation sites should work
with the Service’s Realty Specialists and
the Department of the Interior Solicitor
to assess risks and possible remedies or
other approaches.
6.2.2. Use of Public Land To Mitigate
Impacts on Private Land
In general, the Service supports
compensatory mitigation on public
lands that are already designated for the
conservation of natural resources to
offset impacts to the species on private
lands only if additionality is clearly
demonstrated and is legally attainable.
Additionality is a reasonable
expectation that the conservation
benefits associated with the
compensatory mitigation actions would
not occur in the foreseeable future
without those actions. Offsetting
impacts to private lands by locating
compensatory mitigation on public
lands already designated for
conservation purposes generally risks a
long-term net loss in landscape capacity
to sustain species (e.g., future reduction
in the range of the species) by relying
increasingly on public lands to serve
conservation purposes. However, we
recognize under certain circumstances
this offset arrangement may provide the
best possible conservation outcome for
the species based on best available
science. When this is the case, the
Service will consider mitigation on
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public lands to offset impacts to the
species on private lands appropriate if:
• Compensatory mitigation is an
appropriate means of achieving the
mitigation planning goal for the species;
• Additionality can be clearly
demonstrated and quantified, and is
supplemental to conservation the public
agency is foreseeably expected to
implement absent the mitigation (only
conservation benefits that provide
additionality are counted towards
achieving the mitigation planning goal);
• Durability of the compensatory
mitigation is ensured (see section 6.2.3.
Ensuring Durability on Public Lands);
• It is consistent with and not
otherwise prohibited by all relevant
statutes, regulations, and policies; and
• Private lands suitable for
compensatory mitigation are
unavailable or are available but cannot
provide an equivalent or greater
contribution towards offsetting the
impacts to meet the mitigation planning
goal for the species.
When the public lands under
consideration for use as compensatory
mitigation for impacts on private lands
are National Wildlife Refuge (NWR)
System lands, the Service’s Final Policy
on the NWR System and Compensatory
Mitigation Under the Section 10/404
Program (USFWS 1999) states that the
Regional Director must recommend the
mitigation to the Service Director for
approval. Additional considerations
may apply to NWR System lands for
habitat losses authorized through the
section 10/404 program (i.e., Rivers and
Harbors Act/Clean Water Act).
6.2.3. Ensuring Durability on Public
Lands
Ensuring the durability of
compensatory mitigation on public
lands presents particular challenges,
especially regarding site protection
assurances, long-term management, and
funding assurances for long-term
stewardship. Mechanisms available for
ensuring durability of land protection
for compensatory mitigation on public
lands vary from agency to agency, are
subject to site-specific limitations, and
are likely to be politically and
administratively challenging to secure.
Some mechanisms may require a
legislative act while other mechanisms
can be achieved administratively at
various levels of an agency’s
organization.
To ensure the durability of long-term
management on public lands, there
should be a high degree of confidence
that incompatible uses are removed or
precluded to ensure that uses of the
public lands do not conflict with or
compromise the conservation of the
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species for which the compensatory
mitigation project was established.
6.2.4. Transfer of Private Mitigation
Lands to Public Agencies
Private mitigation lands may be
transferred to public agencies with a
conservation mission if allowed by
applicable laws, regulations, and
policies.
6.2.5. Compensatory Mitigation on
Tribal Lands
Tribal lands are generally eligible as
compensatory mitigation sites if they
meet the standards and other
requirements set forth in this policy.
Ensuring durability, particularly site
protection, is usually a sensitive issue
for a tribal nation because a
conservation easement entrusts the land
to another entity (Terzi 2012), but
acceptable entities may be available to
hold easements. Additional guidance
regarding mitigation and tribes is
included in the Service’s Mitigation
Policy (81 FR 83440, November 21,
2016).
6.3. Service Areas
A service area is the geographic area
assigned to a compensatory mitigation
site within which credits for a specific
resource (e.g., a species) can be utilized.
The impacts for which mitigation is
sought must be located within the
designated service area for the species,
unless otherwise approved by the
Service. If a proposed action is located
within the identified service area of a
specific conservation bank, in-lieu fee
program, or other third-party mitigation
program or site, then the proponent of
that action may offset unavoidable
impacts, with the Service’s approval,
through transfer of the appropriate type
and number of credits from that
mitigation program or site. Use of the
credits outside of service areas is subject
to approval by the Service. Service areas
that apply to all mitigation mechanisms
may be designated by the Service’s
regional or field offices, usually through
issuance of species-specific mitigation
guidance.
The service area is an important
component for a potential mitigation
sponsor who will need to evaluate the
market for credits prior to committing to
a mitigation project. The mitigation
sponsor has the responsibility to
determine if a proposed mitigation
project or program will be financially
feasible and if they will move forward
with the action.
6.4. Crediting and Debiting
A credit is a defined unit representing
the accrual or attainment of ecological
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functions and/or services at a mitigation
site. Credits are often expressed as a
measure of surface area (e.g., an acre or
hectare), linear distance of constant
width (e.g., stream miles), number of
individuals or mating pairs of a
particular species, habitat function (e.g.,
habitat suitability index), or other
appropriate metric that can be
consistently quantified.
Metrics developed to support credits
by measuring an increase in ecological
functions and services at compensatory
mitigation sites and those developed to
measure an expected loss or debit in
ecological functions and services at
impact sites must be science-based,
quantifiable, consistent, repeatable, and
related to the conservation goals for the
species. In general, the method of
calculating credits at a mitigation site
should be the same as calculating debits
at project impact sites. If use of a
common ‘‘currency’’ between credits
and debits is not practicable, the
conversion between crediting and
debiting metrics must be transparent.
Credits are available for use as
mitigation once they are verified and
released by the Service. Credits are
released in proportion to administrative
and ecological milestones. Credits are
considered retired if they are no longer
available for use as mitigation,
including credits that have been
transferred to fulfill mitigation
obligations. Credits may also be
voluntarily retired, without being used
for mitigation, which may help achieve
no net loss or net conservation benefit
goals. Credits are not to be traded among
developers or anyone else and cannot be
re-sold. Once a credit has been
transferred as mitigation for a particular
action, it may not be used again.
A mitigation site may contain habitat
that is suitable for multiple listed
species or other resources in the same
spatial area. When this occurs, it is
important to establish how the credits
will be stacked or bundled and if they
can be unstacked and transferred
separately. See section 8.3. Credit
Stacking and Bundling for guidance.
Compensatory mitigation programs
that use credits are voluntary, and
permittees are never required to
purchase credits from these
compensatory mitigation sources.
Pricing of credits is solely at the
discretion of the mitigation provider.
6.5. Timelines
The Service does not have mandated
timelines for review of conservation
banks, in-lieu fee programs, or other
compensatory mitigation projects that
are not part of a consultation or permit
decision. However, this does not mean
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that compensatory mitigation programs
and projects are not a priority for the
Service. Establishment of programmatic
compensatory mitigation options for
project proponents will provide
efficiencies, particularly when
developed in coordination with
programmatic consultations and HCPs
for large landscapes. These efficiencies
include reducing the Service’s
workloads associated with ESA sections
7 and 10, expediting incidental take
authorization for project proponents,
and achieving better conservation
outcomes for listed and other at-risk
species.
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6.6. Managing Risk and Uncertainty
Compensatory mitigation can be a
valuable conservation tool for offsetting
unavoidable adverse impacts to listed
and at-risk species if the risk can be
sufficiently managed. Predictions about
the effectiveness of compensatory
mitigation measures have varying
degrees of uncertainty. Compensatory
mitigation accounting systems (e.g.,
debiting and crediting methodologies)
should consider risk and adjust metrics
and mitigation ratios to account for
uncertainty. An exact accounting of the
functions and services lost at the impact
sites and gained at the mitigation sites
is rarely possible due to the variability
and uncertainty inherent in biological
systems and ecological processes. To
buffer risk and reduce uncertainty, it is
often helpful to design compensatory
mitigation programs and projects to
achieve measures beyond no net loss to
attain sufficient conservation benefits
for the species. Designing conservation
plans with mitigation that is expected to
achieve more than no net loss in species
conservation generally increases
regulatory predictability and can result
in shorter project reviews and facilitated
permitting.
7. Compensatory Mitigation
Mechanisms
Compensatory mitigation mechanisms
can be divided broadly into habitatbased mechanisms and other nonhabitat-based mitigation programs or
projects. Whatever mechanism(s) are
selected, compensatory mitigation is
expected to provide either equivalent or
additional conservation for the species
to that lost as a result of the action.
Specific operational details regarding
compensatory mitigation mechanisms
will be in the implementation guidance
to be issued by the Service.
7.1. Habitat-Based Compensatory
Mitigation Mechanisms
Compensatory mitigation mechanisms
based on habitat acquisition and
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protection may consist of restoration of
damaged or degraded habitat,
enhancement of existing habitat,
establishment of new habitat,
preservation of existing habitat not
already protected, or some combination
of these that offsets the impacts of the
action and results in or contributes to
sustainable, functioning ecosystems for
the species. Preservation of existing
habitat often includes a change in land
management that renders the site
suitable for the species or provides
additional ecological function or
services for the species. Preservation
includes site protection and is a valid
mechanism for achieving compensatory
mitigation that, at a minimum, reduces
threats to the species. Existing habitat
that is not protected and managed for
the long term is vulnerable to loss and
cannot count toward recovery of listed
species.
The five habitat-based mitigation
mechanisms described below and
compared in Table 1 differ by: (1) The
party responsible for the success of the
mitigation site (the permittee or a third
party); (2) whether the mitigation site is
within or adjacent to the action area (onsite) or elsewhere (off-site); and (3)
whether credits are generated at the
mitigation site for use by more than one
action. Habitat-based compensatory
mitigation will be held to equivalent
standards (the standards set forth in this
policy) regardless of the mitigation
mechanism(s) proposed. Habitat-based
compensatory mitigation programs
developed to credit conservation actions
that benefit unlisted species should
meet all compensatory mitigation
standards set forth in this policy if they
are intended to be used as compensatory
mitigation for adverse impacts of actions
undertaken after listing.
7.1.1. Permittee-Responsible
Compensatory Mitigation
Permittee-responsible compensatory
mitigation is a conserved and managed
mitigation site that provides ecological
functions and services as part of the
conservation measures associated with a
permittee’s proposed action. Permitteeresponsible mitigation sites are usually
permanent, as most proposed actions
with a need for compensatory mitigation
are anticipated to result in permanent
impacts to the species. The permittee
retains responsibility for ensuring the
required compensatory mitigation is
completed and successful. This includes
long-term management and
maintenance when the mitigation is
intended to be permanent. Permitteeresponsible compensatory mitigation
may be on-site or off-site, and each
permittee-responsible mitigation site is
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95343
linked to the specific action that
required the mitigation. Permitteeresponsible mitigation approved for a
specific action is not transferable to
other actions and cannot be used for
other mitigation needs.
7.1.2. Conservation Bank Program
A conservation bank is a site or suite
of sites that is conserved and managed
in perpetuity and provides ecological
functions and services expressed as
credits for specified species that are
later used to compensate for adverse
impacts occurring elsewhere to the same
species. Bank sponsors may be public or
private entities. Ensuring the required
compensatory mitigation measures for a
permitted action are completed and
successful is the responsibility of the
bank sponsor. The responsibility for
success of the mitigation is transferred
to the bank sponsor through the transfer
(usually a purchase by the permittee) of
credits. Conservation banks provide
mitigation in advance of impacts.
7.1.3. In-Lieu Fee Program
An in-lieu fee site is a conserved and
managed compensatory mitigation site
established as part of an in-lieu fee
program that provides ecological
functions and services expressed as
credits for specified species and used to
compensate for adverse impacts
occurring elsewhere to the same species.
In-lieu fee sites are usually permanent
as most proposed actions with a need
for compensatory mitigation are
anticipated to result in permanent
impacts to the species. In-lieu fee
programs may be sponsored by a
government agency or an
environmental, conservation-based, notfor-profit organization with a mission
that is consistent with species or habitat
conservation. The in-lieu fee sponsor
collects fees from permittees that have
been approved by the Service to use the
in-lieu fee program, instead of providing
permittee-responsible compensatory
mitigation. An in-lieu fee site that meets
the mitigation requirements for the
impacts of permittees’ actions will be
established when the in-lieu fee
program has collected sufficient funds.
All responsibility for ensuring the
required compensatory mitigation
measures are completed and successful,
including long-term management and
maintenance, is transferred from the
permittee to the in-lieu fee program
sponsor through the transfer (usually
purchase) of credits. In-lieu fee
programs generally do not provide
mitigation in advance of impacts.
In-lieu fee programs can also be
established to fund non-habitat-based
compensatory mitigation measures. See
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section 7.3 Other Compensatory
Mitigation Programs or Projects for
guidance on these types of programs.
7.1.4. Habitat Credit Exchange
Habitat credit exchanges are relatively
new and warrant additional care and
consideration when being considered as
a mitigation mechanism. A habitat
credit exchange is an environmental
market that operates as a clearinghouse
in which an exchange administrator,
operating as a mitigation sponsor,
manages credit transactions between
compensatory mitigation providers and
project permittees. This is in contrast to
the direct transactions between
compensatory mitigation providers and
permittees that generally occur through
conservation banking and in-lieu fee
programs. Exchanges provide ecological
functions and services expressed as
credits that are conserved and managed
for specified species and are used to
compensate for adverse impacts
occurring elsewhere to the same species.
Exchanges may be designed to provide
credits for permanent compensatory
mitigation sites, short-term
compensatory mitigation sites, or both
types of sites. Habitat credit exchanges
may operate at a local or larger
landscape scale, may consist of one or
more mitigation sites, and may obtain
credits from conservation banks or inlieu fee programs. Exchange
administrators may be public or private
entities. Exchanges developed for
federally listed species will require
Service approval as with all other
mitigation mechanisms described in this
policy.
TABLE 1—COMPARISON OF HABITAT-BASED COMPENSATORY MITIGATION SITES ESTABLISHED UNDER DIFFERENT
MECHANISMS
Responsible party
Credits
generated
Permittee-responsible Mitigation Site ............................
Conservation Bank .........................................................
In-lieu Fee Program Site ................................................
Habitat Credit Exchange Site .........................................
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Mitigation mechanism
Permittee ........................................................................
Bank Sponsor ................................................................
In-lieu Fee Sponsor .......................................................
Exchange Administrator, Mitigation Sponsor, or other
identified responsible entity.
No ................
Yes ...............
Yes ...............
Yes ...............
7.2. Short-Term Compensatory
Mitigation
The concept of short-term
compensatory mitigation has merit if it
serves the conservation goals of the
species. Short-term compensatory
mitigation may be appropriate in some
situations to offset impacts that can be
completely rectified by repairing,
rehabilitating, or restoring the affected
environment within a short and
predictable timeframe. Under this
policy, short-term compensatory
mitigation includes rectifying the
damage at the impact site and providing
short-term compensation to offset the
temporal loss caused by the action to
achieve a conservation outcome that
results in, at a minimum, no net loss to
the species.
A short-term impact is defined in this
policy as an action that meets the
following criteria: (1) The impact is
limited to harassment or other forms of
nonlethal take; (2) the impact can be
completely rectified through natural or
active processes, and the site will
function long term within the landscape
at the same or greater level than before
the impact; (3) restoration of the impact
site can occur within a short and
predictable timeframe based on current
science and the knowledge of the
species; and (4) all temporal loss to the
species by the impact can be estimated
and compensated. Opportunities for
short-term compensation are likely to be
very limited and may not apply to most
species.
Inherent in applying short-term
compensatory mitigation is the recovery
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of the affected species’ populations to
pre-disturbance levels and any
additional increase in population levels
that was anticipated to occur if the
action had not taken place (i.e., adjusted
for temporal loss). Determining the
amount and duration of compensatory
mitigation needed requires substantial
knowledge of the biology of the species
(e.g., abundance, distribution,
fecundity). Actions that meet the criteria
for short-term impacts are not limited to
short-term compensatory mitigation as a
mitigation option. The Service prefers
mitigation mechanisms that protect
conservation values in perpetuity.
Permanent compensatory mitigation
either at the same or a reduced
mitigation ratio (determined by the
Service) is usually an alternative.
Conservation banks or in-lieu fee
programs with available credits that
meet the compensatory mitigation needs
for actions with short-term impacts are
usually a good alternative to short-term
compensatory mitigation.
7.3. Other Compensatory Mitigation
Programs or Projects
Compensatory mitigation is based on
the concept of replacing or providing
substitute resources or environments for
the impacted resource (40 CFR 1508.20).
However, mechanisms or conservation
measures that do not exactly meet this
definition, but that meet the
conservation objectives for the specified
species and are expected to compensate
for adverse effects to species or their
habitats, may be suitable as
compensatory mitigation. These types of
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Responsibility
transferable
No.
Yes.
Yes.
Yes.
compensatory mitigation measures are
acceptable if they are closely tied to
recovery actions identified in species
status assessments, recovery plans, 5year reviews, or best available science
on the threats and needs of the species.
Compensatory mitigation of this type is
often funded through an in-lieu fee
program. Examples of potentially
suitable compensatory measures
include, but are not limited to:
a. Transfer and retirement of timber,
water, mineral, or other severed rights to
an already existing conservation site,
thereby significantly reducing or
eliminating the risk of future
development on the site that would be
incompatible with conservation of the
species;
b. Restricting human use of
waterways or other public spaces
through legal means to allow for
increased or exclusive use by the
species;
c. Controlled propagation, population
augmentation, and reintroduction of
individuals of the species to offset
losses from an action;
d. Captive rearing and release of
individuals of the species to offset
losses from an action;
e. Administering vaccination
programs vital to species survival and
recovery;
f. Gating of caves that serve as habitat
for the species;
g. Construction of wildlife overpasses
or underpasses to protect migratory
passages for the species; and/or
h. Programs that reduce the exposure
of the species to contaminants in the
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environment that are known to cause
injury or mortality.
In rare circumstances, research or
education that can be linked directly to
the relative threats to the species and
provide a quantifiable benefit to the
species may be included as part of a
mitigation package. Although research
can assist in identifying substitute
resources, it does not replace impacted
resources or adequately compensate for
adverse effects to species or habitat. See
the Service’s Mitigation Policy (81 FR
83440, November 21, 2016) for
additional guidance on appropriate uses
of research or education as mitigation.
8. Criteria for Use of Third-Party
Mitigation
Specific operational details regarding
the use of third-party mitigation will be
in the implementation guidance to be
issued by the Service.
8.1. Project Applicability
Activities regulated under sections 7
or 10 of the ESA may be eligible to use
third-party sponsored mitigation, if the
adverse impacts to the species from the
particular project can be offset by
transfer of the appropriate type and
number of credits provided by the thirdparty sponsored mitigation program.
The impacts for which third-party
sponsored mitigation is sought must be
located within the service area for the
species provided by the third-party
sponsored mitigation program unless
otherwise approved by the Service. In
no case may the same credit(s) be used
to compensate for more than one action.
However, the same credit(s) may be
used to compensate for a single action
that requires authorization under more
than one regulatory authority (e.g., a
vernal pool restoration credit that
provides mitigation for a listed species
under the ESA and wetlands under
section 404 of the CWA).
Only credits that have been verified
by the Service and released are
considered available. Only available
credits can be used to mitigate actions.
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8.2. Transfer of Responsibility
The mitigation sponsor assumes
responsibility for success of the
mitigation through the transfer (usually
a purchase by the permittee) of credits
or other quantified amount of
compensatory mitigation.
The Service’s role is regulatory. Credit
transfers are subject to approval by the
Service, as to their conservation value
and appropriate application for use
related to any authorization or permit
issued under the ESA. Market and legal
risks arising from the purchase and use
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of mitigation credits are borne solely by
the parties to the sale of such credits.
8.3. Credit Stacking and Bundling
The Service recognizes the inherent
efficiencies in leveraging multiple
conservation efforts on the landscape
and encourages these coordinated
efforts. However, compensatory
mitigation and other conservation
actions that occur on the same
mitigation site must be accounted for
separately, and all aspects of the
different actions must be managed and
tracked in a transparent manner.
Stacking mitigation credits within a
mitigation site (i.e., more than one credit
type on spatially overlapping areas) is
allowed, but the stacked credits cannot
be used to provide mitigation for more
than one permitted impact action even
if all the resources included in the
stacked credit are not needed for that
action. To do so would result in a net
loss of resources in most cases because
using a species credit separately from
the functions and services that
accompany its habitat, such as carbon
sequestration or pollination services,
would result in double counting (i.e.,
‘‘double dipping’’). Double counting is
selling or using a unit of the same
ecosystem function or service on the
ground more than once. This can occur
through an accounting error in which
the credit is sold twice, and it also can
occur when stacked credits are
unstacked and one or more functions or
services are sold separately. For
example, a credit representing an acre of
habitat is sold once as a species habitat
credit for a permitted action and again
as a carbon credit for a different action
in a different location. The loss of
species habitat at the first impact site
included all functions and services
associated with that habitat including
carbon sequestration, so selling that
same unit of compensatory mitigation
again for carbon sequestration results in
no carbon offset for the loss of carbon
sequestration at the second impact
location. Using a stacked credit
separately to reflect its various values is
an ecologically challenging accounting
exercise.
Compensatory mitigation projects
may be designed to holistically address
requirements under multiple programs
and authorities for the same action and
may use bundled credits to accomplish
this goal. For example, a stream credit
may satisfy requirements for an U.S.
Army Corps of Engineers section 404
CWA permit and issuance of incidental
take authority under the ESA for a listed
mussel species occurring in that stream,
or a county-wide HCP may establish an
in-lieu fee program for which a single
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fee is collected from project applicants
for a permit which covers multiple
mitigation obligations under Federal,
State, and local authorities. In both
these examples, the bundled credit is
used as a single commodity (i.e., it is not
unbundled or unstacked) and is only
used once.
8.4. Use of Credits for Mitigation Under
Authorities Other Than the ESA
Compensatory mitigation projects
established for use under one Service
program (e.g., Ecological Services) may
also be used to satisfy the
environmental requirements of other
Service programs (e.g., Migratory Birds
or Refuges) or other Federal, State, or
local agency programs consistent with
the laws and requirements of each
respective program. However, the same
credits may not be used for more than
one authorized or permitted action (i.e.,
no double counting of mitigation
credits).
9. Compliance and Tracking
A tracking system is essential in
ensuring compliance with the
mitigation instruments used to
implement compensatory mitigation
programs described in this policy.
Tracking systems also facilitate
consistency in the implementation of
compensatory mitigation programs and
projects. It is vital that the Service track
compliance directly for permitteeresponsible mitigation and, at a
minimum, through third parties
responsible for operating compensatory
mitigation programs or projects such as
in-lieu fee programs and habitat
exchanges. Transactions (credit
withdrawals) at a Service authorized
mitigation program or project that are
not related to ESA compliance and are
not approved by the Service must be
tracked in the same tracking system.
The Service is not liable for any event
or transaction that eludes detection
through the Service’s tracking function.
Specific operational details regarding
compliance and tracking will be in the
implementation guidance to be issued
by the Service.
References Cited
Clement, J.P. et al. 2014. A strategy for
improving the mitigation policies and
practices of the Department of the
Interior. A report to the Secretary of the
Interior from the Energy and Climate
Change Task Force, Washington, DC. 25
pp.
Fox, J. and A. Nino-Murcia. 2005. Status of
Species Conservation Banking in the
United States. Conservation Biology
19:996–1007.
Presidential Memorandum (PM). 2015.
‘‘Mitigating Impacts on Natural
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Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 / Notices
Resources for Development and
Encouraging Related Private
Investment.’’ Issued November 3, 2015.
Raffini, E. 2012. Mineral Rights and Banking.
National Environmental Newsletter
34:9–10. Environmental Law Institute,
Washington, DC.
Terzi, G. 2012. The Lummi Nation Wetland
and Habitat Bank—Restoring a Piece of
History. National Wetlands Newsletter
34:12–13. Environmental Law Institute,
Washington, DC.
U.S. Fish and Wildlife Service. 1999. Final
Policy on the National Wildlife Refuge
System and Compensatory Mitigation
Under the Section 10/404 Program.
September 10, 1999. Federal Register
64:49229–49234.
U.S. Fish and Wildlife Service. 2003.
Guidance on the Establishment, Use, and
Operation of Conservation Banks. May 2,
2003. U.S. Department of the Interior
Fish and Wildlife Service. 18 pp.
U.S. Fish and Wildlife Service. 2008.
Guidance on Recovery Crediting for the
Conservation of Threatened and
Endangered Species. July 2008. U.S.
Department of the Interior Fish and
Wildlife Service.
U.S. Fish and Wildlife Service. 2013.
Guidelines for the Establishment,
Management, and Operations of Goldencheeked Warbler and Black-capped Vireo
Mitigation Lands. July 2013. U.S.
Department of the Interior Fish and
Wildlife Service Southwest Region.
U.S. Fish and Wildlife Service. 2016. U.S.
Fish and Wildlife Service Mitigation
Policy. November 21, 2016. U.S.
Department of the Interior Fish and
Wildlife Service.
Williams, B.K., R.C. Szaro, and C.D. Shapiro.
2009. Adaptive Management: The U.S.
Department of the Interior Technical
Guide. Adaptive Management Working
Group, U.S. Department of the Interior,
Washington, DC.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Appendix A: List of Acronyms and
Abbreviations Used in This Policy
CCAA—Candidate conservation agreement
with assurances
CEQ—Council on Environmental Quality
CFR—Code of Federal Regulations
CWA—Clean Water Act
EPA—Environmental Protection Agency
ESA—Endangered Species Act
FWCA—Fish and Wildlife Coordination Act
HCP—Habitat conservation plan
MMPA—Marine Mammal Protection Act
NEPA—National Environmental Policy Act
NWR—National Wildlife Refuge
RPA—Reasonable and prudent alternative
RPM—Reasonable and prudent measure
RIBITS—Regulatory In-lieu fee and Bank
Information Tracking System
SHA—Safe harbor agreement
USACE—United States Army Corps of
Engineers
USFWS—United States Fish and Wildlife
Service
Appendix B: Glossary of Terms Related
to Compensatory Mitigation
Definitions in this section apply to the
implementation of the U.S. Fish and Wildlife
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Service (Service) Endangered Species Act
Compensatory Mitigation Policy and were
developed to provide clarity and consistency.
Some definitions are defined in Service
authorities such as the Endangered Species
Act or the National Environmental Policy
Act, or in regulations or policies existing at
the time this policy was issued. Other
definitions have been developed based on
compensatory mitigation practices.
Definitions in the glossary do not substitute
for statutory or regulatory definitions in the
exercise of those authorities.
Action—an activity or program
implemented, authorized, or funded, in
whole or in part, 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 (81 FR
83440; November 21, 2016).
Action area—all areas to be affected
directly or indirectly by the Federal action
and not merely the immediate area involved
in the action (50 CFR 402.02).
Adaptive management—a systematic
approach for improving resource
management by learning from management
outcomes. An adaptive approach involves
exploring alternative ways to meet
management objectives, predicting the
outcomes of alternatives based on the current
state of knowledge, implementing one or
more of these alternatives, monitoring to
learn about the impacts of management
actions, and then using the results to update
knowledge and adjust management actions.
Adaptive management focuses on learning
and adapting, through partnerships of
managers, scientists, and other stakeholders
who learn together how to create and
maintain sustainable resource systems
(Williams et al. 2009). As applied to
compensatory mitigation, it is a management
strategy that anticipates likely challenges
associated with compensatory mitigation
projects and provides for the implementation
of activities to address those challenges, as
well as unforeseen changes to those projects.
It requires consideration of the risk,
uncertainty, and dynamic nature of
compensatory mitigation projects and guides
modification of those projects to achieve
stated biological goals. It includes the
selection of appropriate measures that will
ensure that the resource functions and
services are provided and involves analysis
of monitoring results to identify potential
problems of a compensatory mitigation
project and the identification and
implementation of measures to rectify those
problems (modified from 33 CFR 332.2).
Additionality—conservation benefits of a
compensatory mitigation measure that
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 (600 DM 6.4G).
Additive impacts, additive effects—the
combined effects of past actions on a species,
other resource, or community; impacts of an
action may be relatively insignificant on their
own, but when considered with the impacts
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from other actions as they accumulate over
time collectively lead to significant overall
loss or degradation of resources. See also
‘‘cumulative effects.’’
Applicant—any person who requires
formal approval or authorization from a
Federal agency as a prerequisite to
conducting an action (50 CFR 402.02);
‘‘person’’ means an individual, corporation,
partnership, trust, association, or any other
private entity; or any officer, employee,
agent, department, or instrumentality of the
Federal Government, of any State,
municipality, or political subdivision of a
State, or of any foreign government; any
State, municipality, or political subdivision
of a State; or any other entity subject to the
jurisdiction of the United States (16 U.S.C.
1532(13)).
At-risk species—candidate species and
other unlisted species that are declining and
are at risk of becoming a candidate for listing
under the Endangered Species Act. This may
include, but is not limited to, State listed
species, species identified by States as
species of greatest conservation need, or
species with State heritage ranks of G1 or G2.
Avoidance—avoiding the impact altogether
by not taking a certain action or parts of an
action (40 CFR 1508.20).
Bank Sponsor—any public or private entity
responsible for establishing and, in most
circumstances, operating a conservation
bank. Bank sponsors are most often private
individuals, companies, or Limited Liability
Corporations, but they may also be
nongovernmental organizations, Tribes, or
government agencies. See also ‘‘mitigation
sponsor.’’
Baseline—the pre-existing condition of a
defined area of habitat or a species
population that can be quantified by an
appropriate metric to determine level of
functions and/or services and re-measured at
a later time to determine if the same area of
habitat or species population has increased,
decreased, or maintained the same level of
functions and/or services.
Candidate conservation agreement with
assurances (CCAA)—a formal agreement
between the Service or the National Marine
Fisheries Service and one or more nonFederal parties who voluntarily agree to
manage their lands or waters to remove
threats to candidate or proposed species and
in exchange receive assurances that their
conservation efforts will not result in future
regulatory obligations in excess of those they
agreed to at the time they entered into the
agreement. The management activities
included in the agreement must significantly
contribute to elimination of the need to list
the target species when considered in
conjunction with other landowners
conducting similar management activities
within the range of the species (USFWS
CCAA Policy).
Candidate species (candidate)—any
species being considered by the Secretary for
listing as an endangered or threatened
species, but not yet the subject of a proposed
rule (50 CFR 424.02); a species for which the
Service or the National Marine Fisheries
Service has on file sufficient information on
biological vulnerability and threats to
support a proposal to list as endangered or
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threatened under the Endangered Species
Act.
Compensatory mitigation
(compensation)—compensation 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 (600 DM 6.4C).
Compensatory mitigation project—
compensatory mitigation implemented by the
action agency, a permittee, or a mitigation
sponsor. Compensatory mitigation projects
include permittee-responsible mitigation,
conservation banks, in lieu fee programs and
sites, habitat credit exchanges, and other
third-party compensatory mitigation projects.
Conservation, conserve, conserving—to use
and the use of all methods and procedures
which are necessary to bring any endangered
or threatened species to the point at which
the measures provided pursuant to the
Endangered Species Act are no longer
necessary (16 U.S.C. 1532(3)).
Conservation bank—a site, or suite of sites,
that is conserved and managed in perpetuity
and provides ecological functions and
services expressed as credits for specified
species that are later used to compensate for
impacts occurring elsewhere to the same
species.
Conservation easement—a recorded legal
document established to conserve biological
resources for a specified duration, usually in
perpetuity, on a identified conservation
property and which restricts certain activities
and requires certain habitat management
obligations for the conservation property.
Conservation measures (conservation
actions)—measures pledged in the project
description that the Federal agency or
applicant will implement to minimize,
rectify, reduce, and/or compensate for the
adverse impacts of the development project
on the species. Conservation measures
designed to compensate for unavoidable
impacts may include the restoration,
enhancement, establishment, and/or
preservation of species habitat or other
measures conducted for the purpose of
offsetting adverse impacts to the species.
Upon issuance of a permit, license or other
such authorization associated with the
proposed project, implementation of that
project requires implementation of the
conservation measures as well as any other
terms and conditions of the permit.
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 the species (81 FR 83440; November
21, 2016).
Conservation plan (species conservation
plan)—a plan developed by Federal, State,
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and/or local government agencies, Tribes, or
appropriate nongovernmental organizations,
in consultation with relevant stakeholders,
for the specific goal of conserving one or
more listed or at-risk species. A conservation
plan is developed using a landscape-scale
approach and addresses the status of, needs
of, and threats to the species, and usually
includes recommended conservation
measures for the conservation/recovery of the
species. Examples of species conservation
plans include species conservation
frameworks, rangewide conservation plans,
and conservation plans developed as part of
a large landscape habitat conservation plan.
Covered species—species specifically
included in a conservation bank, habitat
conservation plan, safe harbor agreement,
candidate conservation agreement with
assurances, rangewide conservation plan, or
other such conservation plan for which a
commitment is made to achieve specific
conservation measures for the species.
Credit (species credit, habitat credit)—a
defined unit representing the accrual or
attainment of ecological functions and/or
services for a species at a mitigation site or
within a mitigation program.
Credit bundling—allowing a single unit of
a mitigation site to provide compensation for
two or more spatially overlapping ecosystem
functions or services that are grouped
together into a single credit type and used as
a single commodity to compensate for a
single permitted action. A bundled credit
may be used to compensate for all or a subset
of the functions or services included in the
credit type but may only be used once, even
if all functions and services represented in
the credit type were not required for the
permitted action. See also ‘‘credit stacking.’’
Credit reserve account—credits set aside in
reserve to offset force majeure or other
unforeseen events as agreed to by the Service,
allowing a mitigation program to continue
uninterrupted.
Credit stacking—allowing a single unit of
a mitigation site to provide two or more
credit types representing spatially
overlapping ecosystem functions or services
which can be unstacked and used as separate
commodities to compensate for different
permitted actions. Credit stacking can result
in double counting (i.e., a net loss of
resources on the landscape) if the same
functions or services are not also accounted
for separately at all impact sites. See also
‘‘credit bundling’’ and ‘‘double-counting.’’
Credit transfer—the use, sale, or
conveyance of credits by a bank sponsor or
mitigation provider to a permittee or other
entity for the purposes of offsetting impacts
of an action.
Critical habitat—specific areas within the
geographical area occupied by the species at
the time it is listed as endangered or
threatened under the Endangered Species
Act, on which are found those physical or
biological features essential to the
conservation of the species and which may
require special management considerations
or protection; and specific areas outside the
geographical area occupied by the species at
the time it is listed, which are determined by
the Secretary of the Department of the
Interior to be areas essential for the
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conservation of the species (16 U.S.C.
1532(5)(A)).
Cumulative effects—those effects of future
State or private activities, not involving
Federal activities, that are reasonably certain
to occur within the action area of the Federal
action subject to consultation under the
Endangered Species Act (50 CFR
402.14(g)(3)). Under the National
Environmental Policy Act, cumulative effects
are defined as the impact on the environment
which results from the incremental impact of
the action when added to other past, present,
and reasonably foreseeable future actions
regardless of what agency (Federal or nonFederal) or person undertakes such other
actions (40 CFR 1508.7).
Debit—a defined unit representing the loss
of ecological functions and/or services for a
species at an impact site. Debits should be
expressed using the same metrics used to
value credits at mitigation sites.
Direct effects—those effects to the species
or other resource that are caused by the
action and occur at the same time and place
(81 FR 83440; November 21, 2016).
Double-counting (double-dipping)—using a
credit, however defined, representing the
same unit of ecosystem function or service on
a mitigation site more than once. This is not
allowed.
Durability—the condition or state in which
the measurable environment benefits of the
compensatory mitigation project or measure
are sustained, at a minimum, for the duration
of the associated impacts (including direct
and indirect impacts) of the authorized
action. To be durable, mitigation measures
effectively compensate for remaining
unavoidable impacts that warrant
compensatory mitigation; use long-term
administrative and legal provisions to
prevent actions that are incompatible with
the measure; and employ financial
instruments to ensure the availability of
sufficient funding for the measure’s longterm monitoring, site protection, and
management (600 DM 6.4G).
Effects (effects of the action)—changes in
the environmental conditions caused by an
action that are relevant to the species or other
resources (81 FR 83440; November 21, 2016),
including the direct, indirect, and cumulative
effects of the action on the species and other
activities that are interrelated to, or
interdependent with, that action as defined at
50 CFR 402.02. See also ‘‘cumulative effects.’’
Endangered species—any species which is
in danger of extinction throughout all or a
significant portion of its range (16 U.S.C.
1532(6)).
Endowment—as used in this policy, funds
that are conveyed solely for the long-term
stewardship of a mitigation property and are
permanently restricted to paying the costs of
management and stewardship of that
property. The management of endowment
funds is generally governed by State and
Federal laws, as applicable. Endowments do
not include funds conveyed for meeting
short-term performance objectives of a
mitigation project.
Enhancement—activities conducted in
existing habitat of the species that improve
one or more ecological functions or services
for that species, or otherwise provide added
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benefit to the species and do not negatively
affect other resources of concern. Compare
with ‘‘restoration.’’
Establishment—construction of habitat of a
type that did not previously exist on a
mitigation site but which will provide a
benefit to the species and does not negatively
affect other resources of concern. Compare
with ‘‘restoration.’’
Fee title (fee)—an interest in land that is
the most complete and absolute ownership in
land; it is of indefinite duration, freely
transferable, and inheritable.
Functions—the physical, chemical, and
biological processes that occur in ecosystems
(33 CFR 332.2); functions are the ecological
processes necessary for meeting species’
habitat and lifecycle needs.
Habitat—an area with spatially identifiable
physical, chemical, and biological attributes
that supports one or more life-history
processes for the species (81 FR 83440;
November 21, 2016).
Habitat conservation plan (HCP)—a
planning document that describes the
anticipated effects of a proposed activity on
the taking of federally listed species, how
those impacts will be minimized and
mitigated, and how the plan will be funded
(16 U.S.C. 1539). The HCP is required as part
of an incidental take permit application to
the Service or the National Marine Fisheries
Service (see ‘‘incidental take’’).
Habitat credit exchange (habitat credit
exchange program)—a market-based system
that operates as a clearinghouse in which an
exchange administrator, acting as a
mitigation sponsor, manages credit
transactions between compensatory
mitigation providers and permittees or others
authorized to implement actions that
adversely affect protected species.
Impact(s) (of an action)—adverse effects
relative to the affected resources (81 FR
83440; November 21, 2016). More
specifically under this policy, adverse effects
on the species or its habitat anticipated in a
proposed action or resulting from an
authorized or permitted action.
Incidental take—take of any endangered or
threatened species that results from, but is
not the purpose of, carrying out an otherwise
lawful activity conducted by a Federal
agency or an applicant (50 CFR 402.02).
Incidental take may be authorized for
endangered or threatened species through
section 7 or 10, or for threatened species,
through a rule codified under section 4(d) of
the Endangered Species Act. (See also,
‘‘take.’’)
Indirect effects—those effects to the species
that are caused by the action at a later time
or another place, but are reasonably certain
to occur (50 CFR 402.02).
In-kind—a resource of a similar structural
and functional type to the impacted resource
(33 CFR 332.2); when used in reference to a
species, in-kind means the same species.
In-lieu fee program—a program involving
the restoration, establishment, enhancement,
and/or preservation of habitat through funds
paid to a governmental or nonprofit natural
resources management entity to satisfy
compensatory mitigation requirements for
impacts to specified species or habitat
(modified from 33 CFR 332.2).
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In-lieu fee program sponsor—any
government agency or nonprofit natural
resources management organization
responsible for establishing, and in most
circumstances, operating an in-lieu fee
program. See also, ‘‘sponsor.’’
In-lieu fee site—a compensatory mitigation
site established under an approved in-lieu fee
program.
Landscape—an area encompassing an
interacting mosaic of ecosystems and human
systems that is characterized by a set of
common management concerns. The
landscape is not defined by the size of the
area, but rather by the interacting elements
that are relevant and meaningful in a
management context (600 DM 6D).
Landscape-scale approach—an approach
to conservation planning that applies the
mitigation hierarchy for impacts to resources
and their values, services, and functions at
the relevant scale, however narrow or broad,
necessary to sustain, or otherwise achieve
established goals for those resources and
their values, services, and functions. A
landscape-scale approach should be used
when developing and approving strategies or
plans, reviewing projects, or issuing permits.
The approach identifies the needs and
baseline conditions of targeted resources and
their values, services and functions,
reasonably foreseeable impacts, cumulative
impacts of past and likely projected
disturbance to those resources, and future
disturbance trends. The approach then uses
such information to identify priorities for
avoidance, minimization, and compensatory
mitigation measures across that relevant area
to provide the maximum benefit to the
impacted resources and their values,
services, and functions, with full
consideration of the conditions of
additionality and durability (600 DM 6E).
Listed species—any species or subspecies
of fish, wildlife, or plant which has been
determined to be endangered or threatened
under section 4 of the Endangered Species
Act (50 CFR 402.02). Listed species are found
at 50 CFR 17.11 and 17.12.
Management plan—the stewardship plan
prepared to instruct the land manager in the
operations and biological management for the
compensatory mitigation site to, at a
minimum, maintain the functions and
services for specified species and other
resources on the mitigation site. These are
generally long-term plans that include a
detailed estimate of the itemized costs for all
management actions required by the plan.
These annual costs are used to estimate the
size of the endowment that will be needed
to maintain and monitor the mitigation site
for the intended duration.
Mitigation (mitigation hierarchy, mitigation
sequence)—as defined and codified in the
Council on Environmental Quality (CEQ)
National Environmental Policy Act (42 U.S.C.
4321 et seq.) regulations (40 CFR 1508.20),
mitigation includes:
• Avoid the impact altogether by not
taking the action or parts of the action;
• Minimize the impact by limiting the
degree or magnitude of the action and its
implementation;
• Rectify the impact by repairing,
rehabilitating, or restoring the affected
environment;
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• Reduce or eliminate the impact over time
by preservation and maintenance operations
during the life of the action; and
• Compensate for the impact by replacing
or providing substitute resources or
environments.
This sequence is often condensed to:
Avoidance, minimization, and compensation.
Mitigation ratio—the relationship between
the amount of the compensatory offset for,
and the impacts to, the species, habitat for
the species, or other resource of concern.
Mitigation sponsor (mitigation project
sponsor, sponsor, mitigation provider)—any
public or private entity responsible for
establishing, and in most circumstances,
operating a compensatory mitigation program
or project such as a conservation bank, inlieu fee program, or habitat credit exchange
(modified from 33 CFR 332.2).
Off-site—a mitigation area that is located
neither on nor adjacent to the same parcel of
land as the impact site (33 CFR 332.2).
On-site—a mitigation site located on or
adjacent to the same parcel of land as the
impact site (33 CFR 332.2).
Performance criteria—observable or
measurable administrative and ecological
(physical, chemical, or biological) attributes
that are used to determine if a compensatory
mitigation project meets the agreed upon
conservation objectives identified in a
mitigation instrument or the conservation
measures proposed as part of a permitted or
otherwise authorized action.
Permittee—any person who receives formal
approval or authorization, generally in the
form of a permit or license, from a Federal
agency to conduct an action. See also,
‘‘applicant.’’
Permittee-responsible mitigation—
activities or projects undertaken by a
permittee or an authorized agent or
contractor to provide compensatory
mitigation for which the permittee retains
full responsibility. As used in this policy,
permittee-responsible mitigation also
includes compensatory mitigation
undertaken by Federal agencies to offset
impacts resulting from actions carried out
directly by the Federal agency.
Perpetuity—endless or infinitely long
duration or existence; permanent.
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 (81 FR 83440; November 21, 2016).
Preservation—the protection and
management of existing resources for the
species that would not otherwise be
protected through removal of a threat to, or
preventing the decline of, the resources to
compensate for the loss of the same species
or resources elsewhere.
Proponent (project proponent)—the agency
proposing an action, and if applicable, any
applicant(s) for agency funding or
authorization to implement a proposed
action (81 FR 83440; November 21, 2016).
For purposes of this policy, any person,
organization, or agency advocating a
development proposal that is anticipated to
result in adverse impacts to one or more
listed or at-risk species. See also, ‘‘applicant’’
and ‘‘permittee.’’
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Resources (resources of concern)—fish,
wildlife, plants, and their habitats for which
the Service has authority to recommend or
require the mitigation of impacts resulting
from proposed actions (81 FR 83440;
November 21, 2016) .
Restoration—repairing or rehabilitating
habitat for the benefit of the species on a
mitigation site with the goal of returning it
to its natural/historic habitat type with the
same or similar functions where they have
ceased to exist, or exist in a substantially
degraded state.
Retired credit—a credit that is no longer
available for use as mitigation. Credits that
have been sold or otherwise used to fulfill a
mitigation obligation are considered retired.
Credits may also be voluntarily retired or
forfeited, without being used for mitigation.
Safe harbor agreement (SHA)—formal
agreement between the Service or National
Marine Fisheries Service and one or more
non-Federal property owners in which
property owners voluntarily manage for
listed species for an agreed amount of time
providing a net conservation benefit to the
species and, in return, receive assurances
from the Service or National Marine Fisheries
Service that no additional future regulatory
restrictions will be imposed (USFWS Safe
Harbor Policy). Under the Safe Harbor Policy,
‘‘net conservation benefit’’ is defined as
contributing to the recovery of the listed
species covered by the SHA.
Service area—the geographic area within
which impacts to the species or other
resources of concern can be mitigated at a
specific compensatory mitigation site.
Species—the term ‘‘species’’ includes any
species, subspecies of fish, or wildlife, or
plants, and any distinct population segment
of any species of vertebrate fish or wildlife
which interbreeds when mature (16 U.S.C.
1532(16)).
Take—means to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture or
collect a federally listed species, or to
attempt to engage in any such conduct (16
U.S.C. 1532(19)). ‘‘Take’’ applies only to fish
and wildlife, not plants.
Temporal loss—the cumulative loss of
functions and/or services relevant to the
species attributed to the time between the
loss of habitat functions and/or services or
individuals of the population(s) caused by
the action and the replacement of habitat
functions and/or services or repopulation of
the species at the compensatory mitigation
VerDate Sep<11>2014
21:38 Dec 23, 2016
Jkt 241001
site to the same level had the action not
occurred.
Threatened species—any species which is
likely to become an endangered species
within the foreseeable future throughout all
or a significant portion of its range (16 U.S.C.
1532(20)).
Unavoidable impact—an impact for which
an appropriate and practicable alternative to
the proposed action that would not cause the
impact is not available (81 FR 83440;
November 21, 2016).
Determinations Under Other Authorities
As mentioned above, we intend to apply
this policy when considering the adequacy of
compensatory mitigation programs, projects,
and measures proposed by Federal agencies
and applicants as part of a proposed action
and mitigation sponsors. Below we discuss
compliance with several Executive Orders
and statutes as they pertain to this policy.
National Environmental Policy Act (NEPA)
We have analyzed this policy in
accordance with the criteria of the National
Environmental Policy Act, as amended
(NEPA) (42 U.S.C. 4332(c)), the Council on
Environmental Quality’s regulations for
implementing the procedural provisions of
NEPA (40 CFR parts 1500–1508), and the
Department of the Interior’s NEPA
procedures (516 DM 2 and 8; 43 CFR part 46).
Issuance of policies, directives, regulations,
and guidelines are actions that may generally
be categorically excluded under NEPA (43
CFR 46.210(i)). Based on comments received,
we determined that a categorical exclusion
can apply to this policy; nevertheless, the
Service chose to prepare an environmental
assessment (EA) to inform decision makers
and the public regarding the possible effects
of the policy revisions.
We announced our intent to prepare an EA
pursuant to NEPA when we published the
draft policy. We requested comments on the
scope of the NEPA review, information
regarding important environmental issues
that should be addressed, the alternatives to
be analyzed, and issues that should be
addressed at the programmatic stage in order
to inform the site-specific stage during the
comment period on the draft policy.
Comments from the public were considered
in the drafting of the final EA. The final EA
is available on the Internet at https://
www.regulations.gov under Docket Number
FWS–HQ–ES–2015–0165.
PO 00000
Frm 00035
Fmt 4701
Sfmt 9990
95349
Paperwork Reduction Act of 1995
This final policy does not contain any new
collections of information that require
approval by the Office of Management and
Budget (OMB) under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et
seq.). OMB has reviewed and approved the
information collection requirements for
applications for incidental take permits,
annual reports, and notifications of
incidental take for native endangered and
threatened species for safe harbor
agreements, candidate conservation
agreements with assurances, and habitat
conservation plans under OMB Control
Number 1018–0094, which expires on
January 31, 2017. We are currently in the
process of seeking renewal for OMB Control
Number 1018–0094. We may not conduct or
sponsor and a person is not required to
respond to a collection of information unless
it displays a currently valid OMB control
number.
Government-to-Government Relationship
With Tribes
In accordance with the President’s
memorandum of April 29, 1994,
‘‘Government-to-Government Relations with
Native American Tribal Governments’’ (59
FR 22951), Executive Order 13175
‘‘Consultation and Coordination with Indian
Tribal Governments,’’ and the Department of
the Interior Manual at 512 DM 2, we have
considered possible effects on federally
recognized Indian tribes and have
determined that there are no potential
adverse effects of issuing this policy. Our
intent with the policy is to provide a
consistent approach to the consideration of
compensatory mitigation programs, projects,
and measures, including those taken on
Tribal lands. We will work with Tribes as
applicants proposing compensatory
mitigation as part of proposed actions and
with Tribes as mitigation sponsors.
Authority: The authorities for this action
include the Endangered Species Act of 1973,
as amended (16 U.S.C. 1531 et seq.), and the
National Environmental Policy Act (42 U.S.C.
4321 et seq.).
Dated: December 15, 2016.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016–30929 Filed 12–23–16; 8:45 am]
BILLING CODE 4333–15–P
E:\FR\FM\27DEN2.SGM
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Agencies
[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Notices]
[Pages 95316-95349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30929]
[[Page 95315]]
Vol. 81
Tuesday,
No. 248
December 27, 2016
Part II
Department of the Interior
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Fish and Wildlife Service
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Endangered and Threatened Wildlife and Plants; Endangered Species Act
Compensatory Mitigation Policy; Notice
Federal Register / Vol. 81, No. 248 / Tuesday, December 27, 2016 /
Notices
[[Page 95316]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[Docket No. FWS-HQ-ES-2015-0165; FXES11140900000-178nmdash;FF09E33000]
Endangered and Threatened Wildlife and Plants; Endangered Species
Act Compensatory Mitigation Policy
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of final policy.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS),
announce the final Endangered Species Act (ESA) Compensatory Mitigation
Policy. The new policy steps down and implements recent Executive
Office, Department of the Interior, and Service mitigation policies
that reflect a shift from project-by-project to landscape-scale
approaches to planning and implementing compensatory mitigation. The
new policy is established to improve consistency and effectiveness in
the use of compensatory mitigation as recommended or required under the
ESA. The ESA Compensatory Mitigation Policy covers permittee-
responsible mitigation, conservation banking, in-lieu fee programs, and
other third-party mitigation mechanisms, and stresses the need to hold
all compensatory mitigation mechanisms to equivalent and effective
standards.
DATES: This policy is effective on December 27, 2016.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this policy, including an
environmental assessment, are available on the Internet at https://www.regulations.gov at Docket Number FWS-HQ-ES-2015-0165.
FOR FURTHER INFORMATION CONTACT: Craig Aubrey, U.S. Fish and Wildlife
Service, Division of Environmental Review, 5275 Leesburg Pike, Falls
Church, VA 22041-3803; telephone 703-358-2442. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
The mission of the U.S. Fish and Wildlife Service (Service or
USFWS) is working with others to conserve, protect, and enhance fish,
wildlife, and plants and their habitats for the continuing benefit of
the American people. As part of our mission, we continually seek
opportunities to engage both the public and private sectors to work
with us to conserve species and the ecosystems on which they depend.
This collaborative effort includes conservation of endangered and
threatened (listed) species and their designated critical habitat
protected under the Endangered Species Act of 1973, as amended (ESA; 16
U.S.C. 1531 et seq.), and other species proposed for listing or at-risk
of being listed. The purposes of the ESA are to provide a means whereby
the ecosystems upon which listed species depend may be conserved, and
to provide a program for the conservation of such species. The Service
and National Oceanic and Atmospheric Administration's National Marine
Fisheries Service share responsibilities for administering the ESA.
However, this policy only applies to the Service and species under our
jurisdiction.
This policy is the first comprehensive treatment of compensatory
mitigation under authority of the ESA to be issued by the Service. Both
the 1995 interagency policy on the establishment and operation of
wetland mitigation banks (60 FR 58605, November 28, 1995) and the 2000
interagency policy on the use of in-lieu fee arrangements (65 FR 66914,
November 7, 2000) are specific to wetland mitigation, but provide
guidance that is generally applicable to conservation banking and in-
lieu fee programs for species associated with wetlands or uplands.
These interagency policies were superseded by the Environmental
Protection Agency--U.S. Army Corps of Engineers 2008 Compensatory
Mitigation Rule for Losses of Aquatic Resources (73 FR 19594, April 10,
2008). In 2003, the Service issued guidance on the establishment, use,
and operation of conservation banks (68 FR 24753, May 8, 2003). In
2008, we issued recovery crediting guidance (73 FR 44761, July 31,
2008). This ESA Compensatory Mitigation Policy clarifies Service
expectations regarding all compensatory mitigation mechanisms
recommended or supported by the Service when implementing the ESA,
including, but not limited to, conservation banks, in-lieu fee
programs, habitat credit exchanges, and permittee-responsible
mitigation.
Purpose and Importance of the Policy
The primary intent of the policy is to provide Service personnel
with direction and guidance in the planning and implementation of
compensatory mitigation, primarily through encouraging strategic
planning at the landscape level and setting standards that mitigation
programs and projects must meet to achieve conservation that is
effective and sustainable. Compensatory mitigation is defined in this
policy as compensation 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 (part 600, chapter 6 of the
Departmental Manual (600 DM 6.4C)). While this policy addresses only
the role of compensatory mitigation under the ESA, avoidance and
minimization of impacts retain their central role in both the section 7
and section 10 processes. Guidance on the application of the mitigation
hierarchy is provided in our Mitigation Policy (81 FR 83440, November
21, 2016), regulations implementing the ESA, and other policies and
guidance documents specific to various sections of the ESA.
Alignment of the Policy With Existing Directives
By memorandum (80 FR 68743, November 6, 2015), the President
directed all Federal agencies that manage natural resources, ``to avoid
and then minimize harmful effects to land, water, wildlife, and other
ecological resources (natural resources) caused by land- or water-
disturbing activities, and to ensure that any remaining harmful effects
are effectively addressed, consistent with existing mission and legal
authorities.'' This policy is consistent with the Presidential
memorandum (``Mitigating Impacts on Natural Resources From Development
and Encouraging Related Private Investment'') issued November 3, 2015;
the Department of the Interior (Department) Secretarial Order 3330
entitled, ``Improving Mitigation Policies and Practices of the
Department of the Interior,'' issued October 31, 2013; the new Interior
Departmental Manual Chapter on Landscape-Scale Mitigation Policy, 600
DM 6 (October 23, 2015); and is intended to institute the policies and
procedures reflected in the guiding principles on mitigation
established by the Department through the report to the Secretary
entitled, ``A Strategy for Improving the Mitigation Policies and
Practices of The Department of the Interior,'' issued in April 2014
(Clement et al. 2014). These directives emphasize a comprehensive
landscape-scale approach to planning and implementing mitigation
programs, and they also include a mitigation goal to improve
[[Page 95317]]
(i.e., ``net gain'') or, at a 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.
The mitigation principles set forth in the above directives,
including the landscape scale approach and the goal of ``net gain,''
have been adopted in both the Service's Mitigation Policy (81 FR 83440,
November 21, 2016), and in this policy. The landscape-scale approach to
mitigation is not a new concept. For example, in 2013, the Service
issued mitigation guidance for two listed songbirds in central Texas
based on recovery goals for these species. The songbird mitigation
guidance sets minimum standards that must be met by mitigation
providers and encourages the use of consolidated compensatory
mitigation in the form of permanent protection and management of large,
contiguous patches of the species' habitat. Proactive approaches, such
as this example, provide greater regulatory certainty for project
proponents and encourage the establishment of conservation banks and
other mitigation opportunities by mitigation sponsors for use by
project proponents.
The mitigation goal (i.e., ``net gain'' or, at a minimum, ``no net
loss'') is not necessarily based on habitat area, but on numbers of
individuals, size and distribution of populations, the quality and
carrying capacity of habitat, or the capacity of the landscape to
support stable or increasing populations of the affected species after
the action (including all proposed conservation measures) is
implemented. In other words, it is based on those factors that
determine the ability of the species to be conserved.
Benefits of the Policy
This policy sets forth standards for compensatory mitigation that
implement the tenets in the directives cited above and reflect the many
lessons learned by the Service during our more than 40-year history
implementing the ESA, particularly sections 7 and 10 of the ESA. The
standards apply to all compensatory mitigation mechanisms (i.e.,
permittee-responsible mitigation, conservation banks, in-lieu fee
programs, habitat exchanges, and other third-party mitigation
arrangements), which are instrumental to achieving effective
compensatory mitigation on the landscape and encouraging private
investment in compensatory mitigation.
Adherence to the mitigation principles and compensatory mitigation
standards identified in this policy will achieve greater consistency,
predictability, and transparency in implementation of the ESA. Service
offices are encouraged to work with Federal agencies and other partners
to establish compensatory mitigation programs based on landscape-scale
conservation plans, such as more efficient, better coordinated, and
expedited regulatory processes, which can provide project applicants
with incentives to mitigate their actions. Compensatory mitigation
programs and projects designed and implemented in accordance with the
standards set forth in this policy are expected to achieve the best
conservation outcomes for listed, proposed, and at-risk species through
effective management of the risks associated with compensatory
mitigation.
This policy encourages the use of market-based compensatory
mitigation programs such as conservation banking in conjunction with
programmatic approaches to ESA section 7 consultations and habitat
conservation plans (HCPs) that can be designed to achieve a ``no net
loss'' or a ``net gain'' mitigation goal. Consultations and HCPs that
establish a ``program'' to address multiple, similar actions and/or
impacts to one or more species operate on a larger landscape scale and
expedite regulatory processes. Market-based mitigation programs improve
regulatory predictability, provide efficiencies of scale, and
incentivize private investment in species conservation (Fox and Nino-
Murcia 2005). The benefits provided by these mitigation programs
generally encourage Federal agencies and incentivize applicants to
develop proposed actions that fully compensate for adverse impacts to
affected species anticipated as a result of their actions.
Discussion
``In enacting the ESA, Congress recognized that individual species
should not be viewed in isolation, but must be viewed in terms of their
relationship to the ecosystem of which they form a constituent element.
Although the regulatory mechanisms of the [ESA] focus on species that
are formally listed as endangered or threatened, the purposes and
policies of the [ESA] are far broader than simply providing for the
conservation of individual species or individual members of listed
species'' (Conference Report No. 97-835 House of Representatives,
September 17, 1982). This comment, made over 30 years ago during
reauthorization of the ESA, is a reminder of the challenges still
before us.
Incorporating a landscape-scale approach to development and
conservation planning, including mitigation, that ensures a ``net
gain'' or, at a minimum, ``no net loss'' in the status of affected
resources, as directed by the Presidential memorandum (80 FR 68743,
November 6, 2015), helps address the additive impacts that lead to
significant deterioration of resources over time and has the potential
to foster recovery of listed species and avoid listing of additional
species.
As discussed later in this document, the Service's authority to
require compensatory mitigation under the ESA is limited and differs
under sections 7 and 10. However, we can more broadly recommend the use
of compensatory mitigation to offset the adverse impacts of actions
under certain provisions of the ESA and under other authorities, such
as the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) and
the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.).
This policy encourages Service offices to work with Federal agencies
and applicants, and to recommend or require, if appropriate, the
inclusion of compensatory mitigation for all unavoidable adverse
impacts to listed, proposed, and at-risk species and their habitat
anticipated as a result of any proposed action. While this practice
currently exists for some species, it is not used broadly throughout
the Service. Recommending, where applicable, that Federal agencies use
their authorities to fully mitigate the adverse effects of their
actions (i.e., ensure ``no net loss'' in the status of affected
resources) is consistent with the Presidential memorandum (80 FR 68743,
November 6, 2015), the Department's and the Service's mitigation
planning goals, and the purposes of the ESA. Effective mitigation that
fully offsets the impacts of an action prevents that action from
causing a decline in the status of affected species (i.e., achieves
``no net loss'').
Compensatory Mitigation Under Sections 7 and 10 of the ESA
The additive effects of impacts adversely affecting listed and at-
risk species as a result of many past and current human-caused actions
are significant. The number of listed species has increased from
slightly more than 300 in 1982 (when the ESA was reauthorized) to more
than 1,500 by the end of 2016. While some listed species have been
reclassified from endangered to threatened (i.e., ``downlisted'') or
[[Page 95318]]
removed from either the Federal List of Endangered and Threatened
Wildlife or List of Endangered and Threatened Plants (i.e.,
``delisted'') within the last 40 years, the projected increase in human
population growth, increasing demand on our natural resources
associated with this projected population growth, accelerated climate
change, continued introductions of invasive species, and other
stressors are putting even more species at risk and compromising the
essential functions of ecosystems necessary to improve the status and
recover these species. We cannot expect to change the status
trajectories of these species without a commitment to responsible and
implementable standards for accomplishing effective, sustainable
compensatory mitigation that fully offsets the adverse impacts of
actions to species and other resources of concern.
Compensatory mitigation is a conservation measure that can be used
within an appropriate context under section 7 of the ESA to address
proposed actions that may result in adverse impacts to listed species
that cannot be avoided. For example, under section 7(a)(1) of the ESA,
all Federal agencies are required to use their authorities to carry out
conservation programs for listed species. Federal agencies may choose
to develop and implement section 7(a)(1) conservation programs for
listed species in conjunction with section 7(a)(2) consultation through
a coordinated program. The Service supports these efforts, and we
encourage Federal agencies to coordinate with us on development of such
programs.
Compensatory mitigation can be used under section 10(a)(1)(B) of
the ESA through HCPs developed to address adverse impacts of non-
Federal actions on listed and other covered species that cannot be
avoided. Landscape-scale HCPs developed for use by multiple applicants
to conserve multiple resources are generally the most efficient and
effective approaches. The Service supports these efforts and encourages
applicants, particularly local and State agencies and organizations, to
coordinate with us on the development of such plans.
Landscape-Level Approaches to Compensatory Mitigation
Taking a landscape-level approach to mitigation will assist the
Service to modernize our compensatory mitigation procedures and
practices and better meet the challenges posed by the growing human
population's demands on our natural resources and changing conditions
such as those resulting from climate change. Conservation banking is a
market-based compensatory mitigation mechanism based on a landscape
approach to mitigation that achieves compensation for listed and other
resources of concern in advance of project impacts. In-lieu fee
programs also establish compensatory mitigation sites but generally not
in advance of impacts and often not through a market-based approach.
Habitat credit exchanges are a relatively new market-based compensatory
mitigation mechanism based on a clearinghouse model that may or may not
accomplish mitigation in advance of project impacts. All three of these
mitigation mechanisms use a landscape-level approach to consolidate and
locate compensatory mitigation in areas identified as conservation
priorities. These programs have designated service areas within which
proposed actions that meet certain criteria may be mitigated with
Service approval. The functions and services provided for listed,
proposed, and at-risk species by these compensatory mitigation programs
are represented by credits. Credits are used to offset impacts (often
referred to as debits). Most credit transactions involve a permittee
purchasing the amount of credits needed to offset the anticipated
adverse effects of an action from the mitigation project sponsor. The
Service must approve credit transactions as to their conservation value
and appropriate application for use related to any authorization or
permit issued under the ESA.
The conservation banking model is generally perceived as successful
at achieving effective conservation outcomes and, when used in
conjunction with section 7 consultations and section 10 HCPs, has
achieved notable regulatory efficiencies. Results include ecological
performance that usually achieves ``no net loss,'' and often a net
benefit, in species conservation; increased regulatory predictability
for Federal agencies and applicants; and more efficient and better
coordinated permitting processes, especially when multiple agencies
with overlapping regulatory jurisdictions are involved.
Permittee-responsible mitigation for many small to moderate impacts
often cannot provide adequate compensation because it is often
difficult to achieve effective conservation on a small scale. Small
mitigation sites are often not ecologically defensible, and it is often
difficult to ensure long-term stewardship of these sites. Most
individual actions result in small or moderate impacts to species and
habitat, yet the additive effects of these actions (often referred to
as ``death by a thousand cuts''), when not compensated for, can have
substantial adverse effects on these resources by degrading the
environmental baseline and impairing the potential for future actions.
In general, conservation banking, in-lieu fee programs, and similar
mitigation mechanisms that consolidate compensatory mitigation on
larger landscapes are designed to serve project proponents with small
to moderate impact actions, are ecologically more effective, and
provide more economical options to achieve compensation than permittee-
responsible mitigation.
Furthermore, larger landscape-scale conservation programs with
market-based compensatory mitigation opportunities create an economic
incentive for private landowners, investors, and mitigation project
sponsors to participate in these programs. The most robust programs
generate competition among mitigation sponsors and may provide cost-
effective means for complying with natural resource laws such as the
ESA. To be successful, these market-based and other compensatory
mitigation programs must operate transparently and be held to high
standards that are uniformly applied across all compensatory mitigation
mechanisms. Equally important is transparency in the implementation of
the ESA and the development of mitigation programs for use by regulated
communities.
Mitigation Defined
Because endangered and threatened species are by definition in
danger of extinction or likely to become so in the foreseeable future,
avoiding, minimizing, and compensating for impacts to their populations
are all forms of mitigation that the Service may consider when
administering the ESA. The Council on Environmental Quality (CEQ) NEPA
regulations (40 CFR 1508.20) state 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.
In 600 DM 6, the Department of the Interior states that mitigation,
as
[[Page 95319]]
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. Historically, those administering the ESA have often
used a condensed mitigation sequence--avoid, minimize, and compensate;
or avoid, minimize, and mitigate. This policy adopts the Department's
definition of compensatory mitigation: Compensation 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 (600 DM 6.4C). Throughout
this policy, ``compensatory mitigation'' or ``compensation'' is used in
this broad sense to include any measure that would rectify, reduce, or
compensate for an impact to an affected resource. We also use the term
``minimize'' in the broad sense throughout this policy to include any
conservation measure, including compensation, which would lessen the
impact of the action on the species or other affected resource. We
recognize there is some overlap in the use of these terms but, as a
practical matter, this use in practice is consistent with the intent of
the ESA. Information regarding avoidance and observance of the
mitigation sequence can be found at our Mitigation Policy (81 FR 83440,
November 21, 2016). This ESA Compensatory Mitigation Policy covers
permittee-responsible mitigation, conservation banking, in-lieu fee
programs, and all other compensatory mitigation mechanisms.
Implementation
The Service will issue interim guidance containing specific
operational steps to assist Service staff in implementing this policy.
This interim guidance will be issued in the form of a Director's
memorandum, which will be used to develop a Service Manual chapter at a
later date. Throughout this policy, the term ``implementation
guidance'' will be used when referencing the interim guidance and
future Service Manual chapter.
Changes From the Draft Policy
This final policy differs from the draft policy in a few
substantive respects, which we list below, and contains editorial
changes in response to comments we received that requested greater
clarity of expression regarding various aspects of the policy's
purpose, authorities, scope, general principles, framework for
formulating mitigation measures, and definitions. The most common
editorial change to the final policy addresses the concern that the
Service lacks authority to apply compensatory mitigation to the ESA.
Reasons cited by the commenters for not applying compensatory
mitigation to the ESA included: (a) The ESA does not provide authority
to require mitigation; and (b) policy concepts such as ``net
conservation gain'' and a ``landscape approach'' to conservation are
inconsistent with ESA statutory authority and regulatory requirements.
This final policy adds new text to 2. Authorities and Coordination that
identifies those circumstances under which we have specific authority
to require, consistent with other applicable laws and regulations, one
or more forms of compensatory mitigation for impacts to federally
listed species, proposed species, and candidates as defined in the ESA.
This policy provides a common framework for the Service when
identifying and implementing compensatory mitigation measures pursuant
to the ESA. The policy, however, cannot and does not alter or
substitute for the regulations implementing the ESA. We summarize below
the few substantive changes from the draft policy, listed by section.
Section 5 in the draft policy, Application of Compensatory
Mitigation Under the ESA, was moved in its entirety to replace section
4, as we felt it more appropriate to discuss the policy's application
under the ESA after section 2. Authorities and Coordination, and
section 3. Scope. Section 4 in the draft policy, Compensatory
Mitigation Standards, is now section 5 in this final policy.
In section 5.1, Siting Sustainable Compensatory Mitigation, this
final policy focuses on overarching considerations and leaves specific
factors or examples to be explained in the implementation guidance.
In section 6.1.3, ``Preference for Consolidated Compensatory
Mitigation,'' we removed habitat credit exchanges as a specifically
identified preference for compensatory mitigation because we do not yet
have the record of success with this mechanism that we have with other
mechanisms such as conservation banks.
The bulk of sections 6.2.3, ``Ensuring Durability on Public
Lands,'', and 6.2.4, ``Transfer of Private Mitigation Lands to Public
Agencies,'' was removed from the policy and will be discussed in the
implementation guidance, as well as the prescriptive operational detail
from section 6.6, Managing Risk and Uncertainty.
In section 7.1.4 ``Habitat Credit Exchange,'' we added text
indicating that habitat credit exchanges are a relatively new
mitigation mechanism, and warrant additional care and consideration
when implementing them. We also removed section 7.1.5, ``Other Third-
party Compensatory Mitigation,'' as this is a purely hypothetical
mechanism which seems to differ little from proponent-responsible
mitigation, and it was redundant with section 7.3, Other Compensatory
Mitigation Programs or Projects.
In Table 1. ``Comparison of Habitat-based Compensatory Mitigation
Sites Established Under Different Mechanisms,'' we removed the column
``Instrument Required'' because all discussion of instruments will be
in the implementation guidance, and we removed the final row of the
table: ``Other Third-party Mitigation Site.''
We removed the draft policy's section 8, Establishment and
Operation of Compensatory Mitigation Programs and Projects; it will
form the basis of the implementation guidance.
Section 9 of the draft policy, Criteria for Use of Third-party
Mitigation, has been re-numbered in this policy, and is now section 8.
The majority of section 10, Compliance and Tracking, has been
removed from the policy, and will be discussed in the implementation
guidance; accordingly, the remaining paragraph has been renumbered in
this policy as section 9.
Regarding appendix B, Glossary of Terms Related to Compensatory
Mitigation, we removed several terms that are more appropriate for the
implementation guidance document as well as items that could be
confused with terms used in the ESA's implementing regulations.
Finally, we have removed appendix C, Requirement of the Marine
Mammal Protection Act, to avoid confusion with the policy's focus on
implementing the ESA.
Summary of Comments and Responses
The September 2, 2016, notice announcing our draft Endangered
Species Act Compensatory Mitigation Policy (draft policy) (81 FR 61032)
requested written comments, information, and recommendations from
governmental agencies, tribes, the scientific community, industry
groups, environmental interest groups, and any other interested members
of the public.
[[Page 95320]]
That notice established a 45-day comment period, ending October 17,
2016, on the draft policy. Several commenters (1) requested an
extension of time to provide their comments; (2) asked the Service to
revise and recirculate the draft policy for comment; or (3) asked the
Service to withdraw the draft policy to allow interested parties
additional time to comment. The November 3, 2015, Presidential
Memorandum on Mitigation states, ``Within 1 year of the date of this
memorandum, the Department of the Interior, through the U.S. Fish and
Wildlife Service, shall finalize a revised mitigation policy that
applies to all of the U. S. Fish and Wildlife Service's authorities and
trust responsibilities. The U.S. Fish and Wildlife Service shall also
finalize an additional policy that applies to compensatory mitigation
associated with its responsibilities under the Endangered Species Act
of 1973.'' In order to finalize the policy as close as possible to the
date outlined in the Presidential Memorandum on Mitigation, we were
unable to publish an extension or reopen the comment period.
During the comment period, we received approximately 150 public
comment letters, including comments from Federal, State, and local
government entities; industry; trade associations; conservation
organizations; nongovernmental organizations; private citizens; and
others. The range of comments varied from those that provided general
statements of support or opposition to the draft policy, to those that
provided extensive comments and information supporting or opposing the
draft policy in its entirety or specific aspects of the draft policy.
The majority of comments submitted included detailed suggestions for
revisions addressing major concepts, as well as editorial suggestions
for specific wording or line edits.
All comments submitted during the comment period have been fully
considered in preparing this final policy. All substantive information
provided has been incorporated, where appropriate, directly into this
final policy or is addressed below. The comments we received were
grouped into general issues specifically relating to the draft policy,
and are presented below along with the Service's responses to these
substantive comments.
We received several comments requesting clarification on various
aspects of the draft policy, including: Reporting; monitoring;
financial instruments; coordination with States, tribes, and local
groups; the compensatory mitigation mechanisms; and other
implementation elements. We recognize the value of these comments and
are giving them due consideration. We have removed these elements from
this policy and will address them in the implementation guidance.
A. Definitions
Comment (1): One commenter suggested a more precise definition of
compensatory mitigation. The commenter stated the draft policy's
definition suggests any remaining impacts must be ``unavoidable'' and
not simply ``un-avoided.'' The commenter suggests the draft policy's
definition is confusing and inconsistent with the ESA language that
uses ``minimize'' and ``mitigate.''
Response: The definition of ``compensatory mitigation'' in this
policy derives from the Department of the Interior's Department Manual
(600 DM 6.4C). This definition gives more flexibility in the use of
avoidance and minimization measures for listed species than the
recommendation provided in the comment. The use of the terms
``appropriate and practicable'' in this policy's definition give
deference to project proponents and Federal agencies.
Comment (2): Comments included a statement that the definition of
landscape-scale approach is unclear.
Response: Our definition of landscape-scale approach is informed by
the definition used in 600 DM 6 and our Service's mitigation policy.
The landscape approach to conservation considers the functional context
of the species or habitat under consideration. For example, activities
involving fairy shrimp might be evaluated at a vernal pool complex or
regional scale. Issues affecting sturgeon may require strategies that
consider an entire river system, thousands of miles long. Fundamental
to this approach is an understanding of what is important to ensure the
ecological function of the species or habitat in question, at the
appropriate scale. Examples include the North American Waterfowl
Management Plan, many fisheries management plans, recovery plans for
federally listed species, watershed restoration plans, and State
wildlife plans.
B. Policy Is Based on Existing Authority
i. ESA Sections 7 and 10
Comment (3): Several commenters stated that the mitigation sequence
that uses ``avoidance'' cannot be required under sections 7 and 10 of
the ESA, unless it alleviates a jeopardy situation. One of the
commenters noted that ``avoidance'' is voluntary on the part of an
action agency or applicant.
Response: The use of ``avoidance'' in the mitigation sequence is
not a requirement in the sense that all impacts to listed species or
critical habitat must be avoided. Through the policy, we are neither
requiring nor mandating avoidance. One of the stated purposes of the
ESA at section 2(b) is to ``provide a means whereby the ecosystems upon
which endangered species and threatened species depend may be
conserved.'' Developing options to avoid impacts to listed resources
under sections 7 and 10 is important to furthering this purpose and
effectively implementing the ESA.
The policy is consistent with the Presidential memorandum
(``Mitigating Impacts on Natural Resources from Development and
Encouraging Related Private Investment'') issued November 3, 2015 (see
80 FR 68743, November 6, 2015), in which the President directed all
Federal agencies that manage natural resources ``to avoid and then
minimize harmful effects to land, water, wildlife, and other ecological
resources (natural resources) caused by land- or water-disturbing
activities, and to ensure that any remaining harmful effects are
effectively addressed, consistent with existing mission and legal
authorities.'' The Service agrees that some impacts to listed species
or critical habitat may be unavoidable and that the ESA provides a
mechanism for both Federal agencies (section 7) and non-Federal
entities (section 10) to receive take coverage in the case of any
unavoidable impacts. There are multiple sections of our implementing
regulations in title 50 of the Code of Federal Regulations (CFR) at 50
CFR part 402 (Sec. Sec. 402.10, 402.13) that direct the Service to
suggest modifications or make advisory recommendations to Federal
action agencies and applicants to avoid the likelihood of adverse
effects to listed species or critical habitat. Additionally, if the
Service is required to provide a reasonable and prudent alternative
under section 7 consultation, the regulations state that such an
alternative must be one ``that the Director believes would avoid the
likelihood of jeopardizing the continued existence of listed species or
resulting in the destruction or adverse modification of critical
habitat'' (50 CFR 402.02). Use of the full mitigation sequence
including avoidance and minimization of impacts to listed species is
consistent with the purposes and mandates set forth in the ESA.
Comment (4): Several commenters suggested compensatory mitigation
cannot be required under section 7 of
[[Page 95321]]
the ESA, and that there is no authority to include such mitigation in
reasonable and prudent measures (RPMs) and the accompanying mandatory
terms and conditions that the Service includes in incidental take
statements. Some stated that compensation is limited to voluntary
actions on behalf of the action agency and recommendations on the part
of the Service. One comment stated compensation was not appropriate in
both RPMs and reasonable and prudent alternatives (RPAs). Another
suggested that compensation under section 7 consultation was
appropriate but not under section 7(a)(4) conference. Commenters cited
the ESA, its implementing regulations, and the Service's 1998
Consultation Handbook.
Response: As discussed in sections 4.1.2 and 4.1.3 of this policy,
compensatory mitigation can play an important role in section 7(a)(2)
consultations and 7(a)(4) conferences. Compensatory mitigation can
appropriately be included as part of an action subject to consultation,
or in reasonable and prudent alternatives to avoid the likelihood of
jeopardy, in order to reduce the net adverse effect of an action on
proposed or listed species or designated critical habitat. This policy
clarifies those circumstances where it may be appropriate to
incorporate mitigation into reasonable and prudent measures and terms
and conditions as part of a section 7(a)(2) consultation. For example,
throughout this policy, ``compensatory mitigation'' or ``compensation''
is used to include any measure that would rectify, reduce, or
compensate for an impact to an affected resource. Rectifying the impact
means ``repairing, rehabilitating, or restoring the affected
environment'' (40 CFR 1508.20). Restoring impacted habitat is a
commonly used reasonable and prudent measure that meets the definition
of compensatory mitigation in this policy, minimizes the amount or
extent of incidental take, and can be accomplished consistent with the
ESA and its implementing regulations at 50 CFR part 402.
Comment (5): Commenters said the policy's emphasis on the role of
conservation in the section 7 consultation process is misdirected.
Section 7(a)(2) does not include a conservation requirement for Federal
agencies.
Response: The Service respectfully disagrees. Section 7(a)(2)
requires that Federal agencies ensure their actions do not jeopardize
the continued existence of endangered and threatened species or result
in the destruction or adverse modification of critical habitat. This
requirement is accomplished through the consultation process, which
concludes with the Service's biological opinion. In the event a section
7 consultation concludes with a jeopardy or adverse modification
determination, the Service will include reasonable and prudent
alternatives (RPAs), when possible, that the action agency can
implement to avoid violation of section 7(a)(2) of the ESA. Options for
RPAs can include compensatory mitigation in order to avoid a jeopardy
or adverse modification situation, as long as they are consistent with
the definitions at 50 CFR 402.02. When the Service's biological opinion
concludes that the agency action would not result in jeopardy or
adverse modification, the Service will include reasonable and prudent
measures (RPMs) to minimize any incidental take associated with the
action. As described in the policy, minimization of impacts of the
taking on the species may include compensation as consistent with the
ESA implementing regulations. The Service provides technical assistance
during the section 7(a)(2) consultation process to help reduce the need
for RPMs and RPAs. These measures fall within the ESA's definition of
``conserve,'' which means ``to use and the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to [the ESA] are no longer necessary.''
Comment (6): Several commenters expressed concern that the policy
would complicate the process for sections 7 and 10, and cause project
delays. The commenters stated that such delays could create increased
project costs.
Response: The Service respectfully disagrees. Mitigation provided
in advance of impacts, such as through a conservation banking program,
can expedite project reviews by the Service, because the mitigation is
already established and has already gone through the due diligence
process. Clear guidance on application of compensatory mitigation
mechanisms as provided in this policy, should assist Service staff and
project proponents implement their ESA responsibilities in a timely
fashion. Furthermore, conducting compensatory mitigation may assist in
the compliance with other required laws, which may expedite the project
process. For example, compensatory mitigation may lower the level of
analysis required by NEPA (allowing a mitigated environmental
assessment/finding of no significant impact instead of an environmental
impact statement).
Comment (7): One commenter objected to the phrase ``recovery
measure'' when discussing section 7(a)(1) of the ESA. The commenter
provided substantial information, including a section of the preamble
from the Service's 1986 interagency cooperation rulemaking (51 FR
19926, June 3, 1986), noting the ESA does not mandate specific actions
under section 7(a)(1), nor does it authorize the Service to mandate how
or when Federal agencies should implement their section 7(a)(1)
responsibilities. Specifically, the commenter said that section 7(a)(1)
is not a recovery measure, and the policy failed to properly state the
basis for such a characterization.
Response: We agree that the directive under section 7(a)(1) of the
ESA does not give the Service authority over other Federal agencies,
nor does it specifically authorize actions to be implemented. It does,
however, direct other Federal agencies to consult with the Service when
developing conservation programs under section 7(a)(1). To this end,
the policy provides guidance and recommendations on how Federal
agencies may achieve the greatest effectiveness when implementing their
section 7(a)(1) obligations.
The policy clearly describes the basis for the use of the term
``recovery measure'' when describing section 7(a)(1), which comes from
the definition of the terms ``conserve,'' ``conserving,'' and
``conservation'' in section 3 of the ESA. Although the word
``recovery'' is not used in the definition, it clearly describes
recovery as ``the use of all methods and procedures which are necessary
to bring any endangered species or threatened species to the point at
which the measures provided pursuant to [the ESA] are no longer
necessary.'' Additionally, section 7(a)(1) directs all Federal agencies
to ``utilize their authorities in furtherance of the purposes of [the
ESA]''. One of the stated purposes of the ESA is to ``provide a means
whereby the ecosystems upon which endangered and threatened species
depend may be conserved.'' The intent is that all Federal agencies have
a responsibility, using their existing authorities, to help recover
listed species.
Comment (8): One commenter stated the policy should focus only on
implementation of voluntary mitigation actions under the ESA. The
commenter noted that mitigation guidance for sections 7 and 10 under
the ESA are provided in the habitat conservation planning and
consultation handbooks.
Response: This policy provides greater clarity and detail with
regard to mitigation implementation than the
[[Page 95322]]
section 7 and habitat conservation planning handbooks. As stated
earlier, this policy reflects the many lessons learned by the Service
during our more than 40-year history implementing the ESA, particularly
sections 7 and 10. We agree that the use of voluntary mitigation
programs and actions that further the purposes of the ESA should be
encouraged. The development and implementation of voluntary mitigation
programs should also be effective and consistent with other forms of
mitigation. The policy will guide such voluntary efforts to promote
consistency in the same way it will guide mitigation efforts in
regulatory processes.
Comment (9): One commenter recommended we add ``and applicants''
following ``Federal agencies'' in two sentences in section 4.1.2.
Response: Applicants are not typically involved in the
establishment of mitigation programs such as conservation banks and in-
lieu fee programs; moreover, the responsibility for ensuring a Federal
action does not violate section 7(a)(2) of the ESA ultimately lies with
the Federal agency proposing the action. We did not make the suggested
change.
Comment (10): One commenter thought the Service should recognize
the importance of the Habitat Conservation Plan (HCP) Assurances (``No
Surprises'') Rule (63 FR 8859, February 23, 1998) and explicitly state
that remediation and alternative mitigation will not erode protections
afforded by the No Surprises Rule.
Response: The Service does recognize the importance of the No
Surprises Rule in the section 10 process, and agrees that remediation
and alternative mitigation should not erode protections afforded by the
No Surprises Rule. The Service works with applicants to develop HCPs
that include contingencies for mitigation that does not function as
expected, including remediation or alternative mitigation. The No
Surprises Rule is not eroded in this case, because these contingencies
are included in the HCPs and agreed upon ahead of time.
Comment (11): One commenter requested clarification of how the
draft policy would apply to reinitiation of consultations under section
7(a)(2) of the ESA. Specifically, what would be different, especially
with regard to the concepts of ``net gain'' and ``no net loss?''
Response: During the reinitiation process under section 7(a)(2),
the concepts under this policy and their application to any
consultation do not change. The ESA's directive to agencies to ensure
any action is not likely to jeopardize the continued existence of any
endangered or threatened species or adversely modify its critical
habitat guides that process. The Service will recommend actions
consistent with this policy, including consideration of the goal of a
``net gain'' or, at a minimum, ``no net loss.'' Considering the variety
of actions under consultation, the reasons for reinitiation, and the
multitude of species covered, it is not possible for the policy to
provide specific details regarding the application of such concepts
during the consultation process.
Comment (12): One commenter was concerned about section 4.7
(Effective Conservation Outcomes and Accountability Through Monitoring,
Adaptive Management, and Compliance) of the draft policy, which states
that: ``A process for achieving remediation or alternative mitigation
for compensatory mitigation failures beyond the control of the
responsible party (e.g., unforeseen circumstances) must be clearly
described in the mitigation instrument, biological and/or conference
opinion, or permit.'' The commenter asked the Service to the clarify
the statement to say that biological opinions issued in connection with
section 7 consultations with Federal agencies, other than the Service
itself, are not required to provide for unforeseen circumstances,
saying that such a requirement is associated with ESA section 10(a)
HCPs, but is not required in the context of section 7 consultations by
the section 7 handbook, or existing law or regulations. They were
concerned the current language of the draft policy could be
misinterpreted to mean that section 7 biological opinions must include
alternative mitigation for compensatory mitigation failures ``beyond
the control of the responsible party,'' and this policy should not
change the section 7 requirements for avoiding jeopardy to the species
and adverse modification of critical habitat.
Response: The development and implementation of mitigation programs
should be effective and consistent among all forms of mitigation
offered in sections 7 and 10 of the ESA, regardless of whether the
mitigation is voluntary or required. Planning for unforeseen
circumstances is part of effective mitigation. The policy will guide
efforts to promote consistency, and Service staff will work with
applicants and Federal agencies to explain how all mitigation standards
can be incorporated into their mitigation plans. Nevertheless, the ESA
and its implementing regulations ultimately determine how the Service
makes decisions regarding listed species. We do not include the
statement in question in this final policy; we will address this topic
in implementation guidance.
Comment (13): One commenter stated the Service has no statutory
authority to require section 7 consultation on candidate or at-risk
species or to include such species in HCPs. If the policy pursues a
conservation goal in excess of the Service's actual regulatory and
statutory authorities, separate guidance should be issued to draw this
clear distinction, in order to provide complete transparency and
direction to both Service staff and others in actual implementation.
Response: The commenter is correct that the Service cannot require
section 7 consultation for candidate or at-risk species. ESA section 7
regulations provide for a conference between a Federal action agency
and the Service for actions that are likely to jeopardize the continued
existence of a proposed species or likely to result in destruction or
adverse modification of proposed critical habitat (50 CFR 402.10).
Including candidate or other at-risk species in conferences would be
voluntary on the part of the Federal agency; however, it is encouraged
by the Service and through this policy, and other Federal agencies may
voluntarily conference to expedite possible future re-consultations.
This is consistent with ESA goals of recovering listed species and,
ideally, avoiding the need to list species because threats to them have
been addressed. Further, intra-Service consultations and conferences
will consider effects of the Service's actions on listed, proposed, and
candidate species. Candidate species are treated as if they are
proposed for listing for purposes of conducting internal Service
conferencing.
Additionally, under section 10 of the ESA, HCPs are voluntary and
developed by the applicant, in consultation with the Service. It is the
applicant who decides which candidate or non-listed at-risk species
they wish to include. The Service has found that many applicants elect
to include at-risk species to receive ``no surprises'' assurances and
preclude the need to amend the associated incidental take permit,
should the species become listed in the future. The voluntary inclusion
of at-risk species in both the conference and HCP processes are
proactive approaches to reduce the need for future listing of the
species.
Comment (14): One commenter said the Service mixes the concepts of
voluntary conservation recommendations that can be provided under ESA
section 7(a)(1) with requirements under ESA section 7(a)(2).
[[Page 95323]]
They also commented that neither standard under ESA section 10 imposes
a ``no net loss'' requirement.
Response: Federal agencies are directed to consult with the Service
under ESA section 7(a)(1) to assist their development of programs to
conserve listed species. Technical assistance to agencies with actions
that require compliance with section 7(a)(2) is a logical nexus for the
Service to advise Federal agencies about section 7(a)(1) conservation
opportunities associated with these actions. Similarly, technical
assistance to non-Federal applicants for incidental take permits under
section 10(a)(1)(B) is a logical nexus to advise them about
conservation opportunities associated with these actions. This policy
provides a framework for such recommendations, and does not otherwise
alter or substitute for standards under the ESA or the regulations
implementing ESA sections 7(a)(2) and 10(a)(1)(B). Though not required,
striving for ``no net loss'' in the status of the species' conservation
is an appropriate mitigation goal, and may be to the benefit of the
other agency or private landowner in greater future regulatory
certainty or expedited future compliance (e.g., including ``at-risk''
species).
ii. Authorities--Other
Comment (15): One commenter requested that we revise section 5.3 of
the draft policy to provide more detail about how compensatory
mitigation would work in relation to section 4(d) rules for threatened
species.
Response: This policy is intended to be general in nature. More
detailed guidance documents covering specific activities may be
developed in the future, such as for rules promulgated under section
4(d) of the ESA.
Comment (16): One commenter said that it was unclear how the policy
would ``replace'' rules promulgated by other Federal agencies for
guiding implementation of Federal laws such as the Clean Water Act (33
U.S.C. 1251 et seq.) and natural resources such as ``waters of the
United States.'' They requested clarification of how the April 10,
2008, joint rulemaking of the U.S. Army Corps of Engineers (USACE) and
the Environmental Protection Agency (EPA) (73 FR 19594) applies to ESA
actions and what the impact of the policy would be.
Response: The Service has added clarification to this final policy
that it does not replace or alter the referenced April 10, 2008, rule
(73 FR 19594). Processes established by applicable statutes and
regulations remain in effect and are not superseded by this policy.
This policy applies to compensatory mitigation for all species and
habitat protected under the ESA and for which the Service has
jurisdiction. The April 10, 2008, rule (73 FR 19594) applies to impacts
to aquatic resources permitted by section 404 of the Clean Water Act.
Comment (17): One commenter said that issuance of this policy
violates the Administrative Procedure Act (APA; 5 U.S.C. subchapter II)
or the Regulatory Freedom Act (RFA).
Response: The Service complied with all necessary requirements in
publishing the final policy. We are unaware of the Regulatory Freedom
Act but for the purposes of this response, will assume the commenter is
referring to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et
seq.). The policy does not require compliance with the APA or the RFA
because it is not a regulatory document.
Comment (18): One commenter was concerned that voluntary mitigation
could be abused if an agency were to unreasonably withhold action for
the purpose of applying undue pressure to force an applicant to
volunteer mitigation measures. They said the policy should acknowledge
and protect against this possibility.
Response: We agree with the commenter that such an approach by
Service or other agency staff would be unacceptable. It would also be
contrary to this policy and existing authority. Processes established
by applicable statutes and regulations remain in effect and are not
superseded by this policy.
Comment (19): One commenter stated that the policy goes beyond the
authorities granted the Service in both sections 7 and 10 of the ESA.
The other authorities relied on by the Service in adopting this policy,
including the Presidential directives and memoranda, cannot legally
form the basis for the promulgation of the policy.
Response: This policy is designed to improve and clarify
implementation of the ESA. Towards that end, it seeks to provide a
framework for effecting mitigation that reflects a permissible reading
of the law, while fulfilling the conservation purposes of the ESA.
Federal agencies are directed to consult with the Service under ESA
section 7(a)(1) to assist their development of programs to conserve
listed species. A mitigation framework may provide valuable expertise
for an agency considering their section 7(a)(1) responsibilities.
Additionally, a framework may assist agencies with actions that require
compliance with section 7(a)(2) of the ESA. Similarly, technical
assistance to non-Federal applicants for incidental take permits under
section 10(a)(1)(B) of the ESA is a logical nexus to advise them about
conservation opportunities associated with these actions. The policy
provides a framework for such recommendations and does not otherwise
alter or substitute for the regulations implementing ESA sections
7(a)(2) and 10(a)(1)(B). Authority to make recommendations to mitigate
impacts to resources covered by the ESA is provided by that statute.
Promulgation of this policy is consistent with not only the ESA, but
also the Office of Management and Budget's guidelines on interpretive
policies. Those guidelines state that public policies, such as this
one, guide administrative processes while increasing an agency's
predictability to external parties.
Comment (20): One commenter noted the ESA imposes different
standards and prohibitions with respect to pre-listing versus post-
listing activities for candidate conservation agreements with
assurances (CCAAs) and safe harbor agreements (SHAs). By incorporating
the net conservation benefit standard used for SHAs, the Service fails
to account for these differences and conflates its treatment of pre-
listing and post-listing activities.
Response: The Service does not intend to change the requirements
for CCAAs and SHAs. The intent of the policy is to describe the
requirements for converting either of these agreements to a mitigation
agreement should a landowner desire to make their conservation more
permanent and use it for mitigation.
iii. NEPA
Comment (21): One commenter said that the policy should recommend
that the Service comment on NEPA documents apart from, or in addition
to, section 7 consultation.
Response: We agree that application of the Service's authority to
make advisory comments and recommendations under NEPA provides a
powerful capability for influencing conservation of a broad array of
natural resources while helping agencies and proponents identify
appropriate project alternatives. The Service will continue to comment
on NEPA documents in addition to conducting section 7 consultations
whenever warranted. Our application of NEPA in a mitigation context is
covered in the Service mitigation policy (81 FR 83440, November 21,
2016).
Comment (22): One commenter said the policy would increase the time
and resources required by Federal agencies to comply with section 7 of
the ESA and by proponents of any projects that may
[[Page 95324]]
adversely affect an at-risk species. The commenter said that the policy
meets the definition of a major Federal action defined at 40 CFR
1508.18 and should be analyzed in an environmental impact statement to
comply with NEPA.
Response: As explained in more detail below, neither of the two
alternatives evaluated in the NEPA assessment would be expected to
result in significant effects to the human environment within the
meaning of NEPA and the CEQ regulations. Although we describe potential
actions and consequences that could flow from each of the alternatives,
the nature and scope of environmental consequences that are likely to
result from any of the alternatives would depend on a variety of
intervening circumstances that are impossible to identify in this
analysis. However, we find there is no basis to infer that any such
effects, even viewed generously, would be significant.
In addition, because of the programmatic nature of the draft policy
and the breadth of activities under consideration, the analyses of
environmental effects must be very general, addressing the consequences
from each alternative at a programmatic scale. Regardless of the
alternative, we anticipate that the majority of the specific actions
covered under the policy would receive additional project-specific NEPA
review, either by other Federal agencies during their project review or
by the Service during review of an ESA section 10(a)(1)(B) application.
Those project-specific reviews would include development of
appropriately detailed alternatives based on information necessary to
complete informed and meaningful effects analyses. That information
(e.g., location, timing, duration, and affected resources, etc.) is
currently not available. More detailed information is contained in the
environmental assessment, which is available on the Internet at https://www.regulations.gov at Docket Number FWS-HQ-ES-2015-0165.
C. Net Conservation Gain/No Net Loss
Comment (23): One commenter stated the policy should more
consistently emphasize throughout that ``conservation'' is the goal for
protected species and their habitat, using our full suite of
authorities including the ESA. While ``no net loss'' is appropriate
under certain statutes like the Clean Water Act (as acknowledged in the
April 10, 2008, joint rulemaking of USACE and EPA (73 FR 19594), for
example), ``no net loss'' is a lower standard than what they have
sought in conservation banking and in-lieu fee programs.
Response: The Service's mitigation policy (81 FR 83440, November
21, 2016) sets a mitigation planning goal of ``net conservation gain,''
which seeks to improve the status of affected resources, and, at a
minimum, maintain the status of those resources (i.e., ``no net
loss''). Adhering to the standards discussed in section 5 of this
policy (Compensatory Mitigation Standards) is the best way to attain
this goal, although we recognize that achieving a net conservation gain
will not be possible in every circumstance, and in those cases will
strive for ``no net loss.''
Comment (24): One commenter strongly opposed the goal of a ``net
gain'' in the policy, stating the Service lacks the underlying
statutory authority to require it under the ESA and it will likely
result in an uncompensated taking in violation of the U.S.
Constitution. The commenter stated that the obligations under the
policy, with the use of mandatory language such as ``must'' and
``shall,'' constitute a rulemaking.
Response: This policy adopts mitigation principles established by
the Service's mitigation policy (81 FR 83440, November 21, 2016) and
establishes compensatory mitigation standards to guide the use of
compensatory mitigation under the ESA. The mitigation goal of ``net
gain'' or, at a minimum, ``no net loss,'' is to assist the Service and
its partners in developing mitigation programs and projects to further
the purposes of the ESA. One of the stated purposes under section 2 of
the ESA is to ``provide a means whereby the ecosystems upon which
endangered and threatened species depend may be conserved.'' Section 3
of the ESA defines ``conserved'' as ``the use of all methods and
procedures which are necessary to bring any endangered species or
threatened species to the point at which the measures provided pursuant
to this Act are no longer necessary.'' This conservation purpose of the
ESA is served by the policy's goal of a ``net gain'' when developing
compensatory mitigation.
In this context, the policy is not a legally binding rulemaking;
the ESA and its implementing regulations determine the Service's
decisions for listed species. The policy will not effectively compel a
property owner to suffer a physical invasion of property and will not
deny all economically beneficial or productive use of the land or
aquatic resources. This policy provides consistent standards for the
Service, and its partners, to apply when developing compensatory
mitigation programs or projects, as appropriate under the authority of
the ESA. The use of the terms ``must'' and ``shall'' in the policy are
directed toward the Service's authority in implementing the ESA.
The policy is broadly framed to encompass all species covered under
the ESA, but does not result in any particular actions concerning
specific properties. Additionally, this policy substantially advances a
legitimate government interest (conservation of species and their
habitats) and does not present a barrier to all reasonable and expected
beneficial use of private property.
Comment (25): One commenter stated that the Service does not
explain how it will determine or impose mitigation measures to meet a
mitigation target that is somewhere between maintaining and improving
the status of affected resources.
Response: The Service, being national in scope of operations, wrote
this policy to allow for further clarification on a regional and local
scale. This will allow the Service to work with Federal agencies and
applicants to develop mitigation measures that meet objectives based on
local conditions and tailored to the specific species that are
impacted. A less flexible policy could cause rigid adherence to a
protocol, which may be more suitable in one region, or for one species,
versus another.
Comment (26): Commenters stated that the ESA requirements to avoid
jeopardy or adverse modification and to minimize the impact of any take
of listed species do not equate to the no net loss or net gain goal
articulated in the draft policy, and the Service has no authority under
the ESA to require measures that will result in a ``net gain'' or ``no
net loss.'' In addition, one commenter said a ``net gain'' or ``no net
loss'' goal is incompatible with well-established standards for
administering sections 7 and 10 of the ESA.
Response: Action agencies or proponents may adopt Service
recommendations provided under this policy as part of their proposed
actions, but electing to do so does not change the applicable standards
under the ESA or otherwise alter the processes prescribed under the ESA
and its regulations.
The Service does not view a ``net gain'' or ``no net loss'' goal as
incompatible with well-established standards for administering sections
7 and 10 of the ESA. Instead, it is complementary to the ESA
requirements to avoid jeopardizing the continued existence of any
listed species, or destroying or adversely modifying any designated
critical habitat. To achieve
[[Page 95325]]
this goal, an action agency or applicant need not abandon the actions
they have taken to avoid jeopardizing the continued existence of any
listed species, or destroying or adversely modifying any designated
critical habitat. Instead, they may complement these actions by
including additional measures that allow their action to reach the
``net gain'' or ``no net loss'' goal.
Comment (27): One commenter said by encouraging Service staff to
work with applicants to implement ``no net loss'' or ``net conservation
gain,'' the judgment of applications will no longer be standardized.
They said the policy does not state how conservation gain will be
measured, whether on a numerical basis or under what circumstances the
Service will make a qualitative judgment regarding the level of
mitigation that achieves this standard.
Response: This policy is national in scope, and it is beyond the
scope of the policy to provide specific quantifiable measures to
achieve a ``net conservation gain'' or specify the methodology for
assessing or measuring the ``net conservation gain.'' The Service's
mitigation goal is to achieve a ``net conservation gain'' or, at a
minimum, ``no net loss'' of the affected resources. The policy provides
the framework for formulating compensatory mitigation measures to
achieve this goal. The geographical and ecological breadth of this
policy's coverage combined with the variation in project and impact
types affecting species and habitats nationwide make the detailed
specifications for calculating ``no net loss'' or ``net gain''
impossible to include. Such determinations will either be made on a
case-by-case basis or will be addressed through additional guidance or
planning processes.
Comment (28): Commenters said the policy should be revised to help
Service staff avoid crossing the line between ``encouraging'' Federal
agencies and applicants to achieve ``a net gain or, at a minimum, no
net loss in the conservation of listed species'' and incorrectly
representing to Federal agencies and applicants that they are somehow
``required'' to achieve a ``net gain'' or, at a minimum, ``no net
loss'' in the conservation of listed species. Commenters added that
Service staff should be instructed by the policy to clearly disclose to
Federal agencies and applicants at all times that section 7 of the ESA
does not require such a ``no net loss in the conservation of listed
species'' or a ``net gain'' in relation to the ``no jeopardy'' and ``no
adverse modification'' standards.
Response: This policy clearly states that the mitigation planning
goal is a goal, not a requirement. We expect further clarification on a
regional and local scale to reiterate this distinction.
Comment (29): One commenter stated the goal of ``no net loss'' is
admirable and adequate with respect to the Presidential Memorandum (80
FR 68743, November 6, 2015); however, the commenter is concerned this
new language may unfairly prohibit or require mitigation for
agricultural actions without due process of assessment.
Response: The Service will consider the facts specific to the
actions that we review under our authorities. This policy does not
provide for the Service to categorically deny development or
agricultural activities. Instead, our decisions and opinions on those
activities will be guided by relevant statutes and regulations.
Comment (30): One commenter said the sentence, ``Losses of habitat
that require many years to restore may be best offset by . . .
preservation of existing habitat . . .,'' is counter to the ``no net
loss policy.''
Response: The entire sentence reads, ``Losses of habitat that
require many years to restore may best be offset by a combination of
restored habitat, preservation of existing high-quality habitat, and
improved management of existing habitat.'' It is the combination and
ratios of these three habitat mitigation types that can create a ``no
net loss'' scenario. Improved management can create an immediate
conservation benefit and habitat restoration creates a long-term
conservation benefit, while preservation of high quality habitat
protects existing habitat from being lost. Long-term land management is
included in the durability standard.
D. Applicability
Comment (31): Several commenters had concerns about the
applicability of the policy to existing mitigation programs, HCPs and
associated incidental take permits, and ongoing section 7 consultations
that were initiated between the Federal agency and the Service prior to
the effective date of the final policy. The comments requested clarity
that the policy does not apply to existing projects or projects
currently under development, including the associated real estate and
financial assurances.
Response: The policy states that it applies to Federal and non-
Federal actions permitted or otherwise authorized or approved prior to
issuance of the policy only under circumstances where the action may
require additional compliance review under the ESA. In addition, the
policy states that it does not apply where the Service has already
agreed in writing to mitigation measures for pending actions, except
where new activities or changes in current activities associated with
those actions would result in new impacts, or where new authorities or
failure to implement agreed-upon recommendations warrant new
consideration regarding mitigation. Service offices may elect to apply
this policy to actions that are under review as of its effective date
(see DATES, above).
Comment (32): The draft policy does not include any de minimus size
consideration. While consultation considers the extent of potential
impacts to ESA-listed species, the draft policy does not. It talks in
general terms about credit valuation and ratios, but at some point,
there should be a consideration of a de minimus project size to which
this draft policy would not apply.
Response: The policy is intended to guide compensatory mitigation
projects for listed and at-risk species regardless of the scope,
magnitude, or size of the project. As such, it would not be reasonable
to attempt to define ``de minimis'' limits for the application of the
policy that would cover all species and mitigation projects across the
country. However, step-down guidance derived from this policy for
particular species would be more specific for the biological needs of
the species and therefore likely consider factors related to the scope
of compensatory mitigation projects.
E. Scope of the Policy
Comment (33): One commenter said that the Service should identify
activities and projects that are exempt from the policy.
Response: We agree that the scope of coverage should be clearly
described and have listed those circumstances when the policy does not
apply in section 3, Scope.
Comment (34): One commenter said that it is important for the
policy to address species protected under additional Federal laws,
including the Bald and Golden Eagle Protection Act (BGEPA; 16 U.S.C.
668-668d) and the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-712).
Response: We agree that conservation of the resources under BGEPA
and MBTA is important. However, those resources, and processes
specified by those Acts and any implementing regulations or guidance,
are beyond the scope of this policy. We discuss these
[[Page 95326]]
authorities in the Service mitigation policy (81 FR 83440, November 21,
2016).
Comment (35): One commenter said that the policy should be limited
to listed threatened species, listed endangered species, candidate
species, and designated critical habitat.
Response: We agree that the commenter's list of covered resources
is similar to our description of covered resources in section 3, Scope,
of this policy. There we state that the policy applies to all species
and habitat protected under the ESA and for which the Service has
jurisdiction. Endangered and threatened species, species proposed as
endangered or threatened, designated critical habitat, and proposed
critical habitat are the primary focus of this policy. We also state
that candidates and other at-risk species would benefit from adherence
to this policy, and encourage all Service programs to develop programs
and tools in cooperation with States and other partners.
F. At-Risk Species
Comment (36): Several commenters suggested only listed species
should be covered by the policy, and ``at-risk'' species references
should be removed. Commenters suggested there is no ESA basis for
including at-risk species in the policy, that no standards exist for
the definition of at-risk species, and that it would create additional
burdens on the public. One comment requested clarification of the
jurisdiction of the Service, States, and tribes regarding at-risk
species.
Response: The Service has addressed at-risk species through
implementation of the ESA under many voluntary programs. Often partners
(e.g., other agencies, private landowners) voluntarily consider ``at-
risk'' species for greater regulatory certainty and to expedite future
compliance if these ``at-risk'' species are later listed under the ESA.
Under section 6 of the ESA, the Service partners with the States to
fund research and recovery actions on listed and at-risk species.
Candidate conservation agreements with assurances (CCAAs) are a highly
successful program for private landowners providing voluntary
conservation for at-risk species. Many HCPs under section 10 of the ESA
also include voluntary coverage for at-risk species. These and other
proactive efforts for at-risk species, including our draft Policy
Regarding Voluntary Prelisting Conservation Actions (79 FR 42525, July
22, 2014), focus on preventing the need to list species under the ESA.
The Service also values its partnerships with the States and tribes in
conservation of fish and wildlife resources. This final policy aims to
strengthen these partnerships and does not extend the Service's
jurisdiction over at-risk species. We have included at-risk species, as
appropriate, in the policy to further these efforts in preventing the
decline of species to the point that protection under the ESA is
necessary.
G. Equivalent Standards
Comment (37): One commenter thought the policy should emphasize
that there are no prescribed standards that will dictate mitigation but
that every situation will be considered fact-specific and flexible, and
be based upon the voluntary actions of the proponent.
Response: The Service has written this policy in a manner that
facilitates further clarification on a regional scale. As with many of
the decisions made in impact analysis, determination of when and what
type of mitigation should be implemented occurs on a project-by-project
basis, under the authority at hand, with information most appropriate
for the site or region of impact. Section 7 of this policy,
Compensatory Mitigation Mechanisms, allows the Service flexibility in
the type of mitigation mechanism used to meet this need. Section 5 of
the policy, Compensatory Mitigation Standards, describes the standards
we will require or recommend that all mechanisms meet.
H. Landscape-Scale Approach
Comment (38): Individual actions that harm ESA-listed, proposed,
and at-risk species must not be discounted or minimized because they
are considered to impart only small or moderate impacts within the
broader context of the landscape. The policy should consider how these
site-specific impacts could be identified and accounted for prior to
development of the most appropriate compensatory approach.
Response: The Service agrees that small or moderate impacts that
have cumulative effects are important to address. In each situation,
the project effects analyses should identify all effects to the species
under consideration, as well as measures to avoid, minimize, and
compensate adverse effects. These analyses can characterize repeated,
ongoing actions that may affect a species at a larger scale, and can
help inform recovery efforts at a local or regional level. Ideally, the
project proponent and the Service would also identify opportunities to
support recovery/conservation of that species and include them in the
action, if possible. This is a collaborative approach to conservation,
consistent with relevant statutes and regulations, and can help offset
the cumulative effects of many actions on the landscape.
Comment (39): One commenter said the draft policy should provide
additional guidance on how landscape-scale indirect effects would be
evaluated for buffers surrounding existing mitigation sites, including
mitigation banks. They recommend clarification regarding the process
when additional compensation may be necessary for landscape-scale
indirect effects to existing mitigation sites.
Response: It is difficult at this time to provide specific guidance
on buffers and indirect effects given the potential universe of actions
that could arise and fact-specific situations of each mitigation site.
We declined to provide such guidance in this policy.
Comment (40): Some commenters were concerned that the landscape-
level approach to mitigation planning would focus too narrowly on
certain species to the detriment of others, or that purchasing credits
from a conservation bank or in-lieu fee program would not equate to
replacing lost habitat.
Response: The goal of a landscape-scale approach to mitigation is
to ensure functionally successful compensatory mitigation efforts for
the habitats or species under consideration. While no project or
habitat benefits all species all the time, using a landscape context to
frame mitigation actions should reinforce functionality at the
appropriate scale (i.e., tract, regional, range) to benefit the target
resource, and in most cases, other resources/species that also rely on
that functional system. Using a landscape approach will help ensure the
compensatory mitigation measures will meaningfully offset adverse
effects to a species/habitat in a way that is ecologically sustainable
over the long term. This is a more holistic approach to ensuring the
functionality of the ecosystems on which federally listed and at-risk
species depend.
Comment (41): One commenter recommends that the Service consider
revising the guidance provided under section 5.1.2 of the draft policy
to discuss not only economies of scale associated with conservation
banks and small impacts, but also to state that large-scale impacts
require large-scale mitigation and such development projects have the
potential to create landscape-scale conservation benefit for species,
which may not be best achieved through banks.
Response: The Service agrees large-scale projects have the
potential to
[[Page 95327]]
provide large-scale mitigation measures to offset adverse effects and
ideally contribute to recovery. The examples given in section 5.1.2 of
the draft policy are compensatory mitigation programs that can be
established in advance of impacts, such as conservation banking or in-
lieu fee programs. A large-scale mitigation project implemented in
advance of impacts will likely offset the impacts of multiple projects,
and is essentially a conservation bank.
Comment (42): One commenter stated that landscape-scale mitigation
is unauthorized and unfeasible. Landscape-scale impact evaluations and
required mitigation measures on this basis imports a policy objective
into official ESA decisions in excess of statutory authority and is
incongruent with the ESA.
Response: The goal of the ESA is to conserve endangered and
threatened species and the ecosystems on which they depend. Through
science and technological advances, conservation has more tools than
ever to effectively evaluate land use, populations, hydrology, and so
forth, at scales relevant to the needs of federally listed and at-risk
species. To ensure the most effective mitigation measures for these
resources, it is critical to put them in an ecologically functional
context, i.e., a landscape. That does not mean every action requires
advanced, ecosystem-level quantitative evaluations, but rather that the
effects of an action and mitigation measures to offset those effects
take into consideration truly functional strategies that will continue
to provide long-term resource benefits. This does not expand any
existing authorities for ESA implementation.
Comment (43): We received comments requesting clarification of when
programmatic approaches to mitigation would be appropriate.
Response: This policy does not require the development of
programmatic documents to support infrequent compensatory mitigations
needs. The decision to develop programmatic approaches to mitigation
will be made based upon resource-specific circumstances, such as how
frequently agencies and applicants will need to compensate for their
impacts.
Comment (44): Comments included concerns about the Service's
proposed extension of critical habitat to areas not currently occupied
by a listed species, on the basis that an area may become critical
because the species' range is expected to expand to that area. In
determining the scale of a landscape-level approach to mitigation, the
Service should not ignore the need for a rational connection to the
area of actual impact of a proposed project. Instead, it should base
requirements for landscape-scale mitigation on demonstrable connections
between truly foreseeable or predictable impacts, rather than
speculative projections of habitat or range modifications due to
climate change.
Response: The Service agrees that compensatory mitigation must be
based on the best available science, and have a rational connection
between project effects and proposed mitigation measures. The landscape
approach provides the context within which to frame that connection. As
our understanding of species' needs, habitats, and climate change
increases, we will be better able to address potential future needs of
species and their habitats. In planning mitigation strategies, it is
also important to recognize uncertainties in future conditions,
including habitats, water supplies, temperatures, etc. Those
uncertainties should be built into the mitigation strategies to ensure
that the proposed mitigation benefits adequately offset adverse effects
over the long term. The policy does not address the designation of
critical habitat; the regulations for the designation of critical
habitat are found at 50 CFR 424.12.
Comment (45): One commenter said the focus on landscape-scale
conservation is laudable, but the draft policy introduces new processes
and standards that could make achieving this goal more costly, time-
consuming, and burdensome. The policy should include ways to
incentivize the creation of landscape-scale mitigation projects that
capitalize on the multiple ecosystem services and efficiencies that
landscapes provide. More consideration for the self-regulating aspects
of natural landscapes that could reduce management and monitoring
burdens (lowering costs), and the ability to unstack credits for
different listed species when their habitats overlap in space but not
in function (increasing market returns), would help make landscapes a
priority for the conservation marketplace.
Response: The landscape approach to conservation provides a
conceptual framework to design effective and durable mitigation
strategies. The intent is to approach mitigation planning and
implementation from an ecologically functional perspective for more
effective, durable outcomes. Designing mitigation that works with
natural landscapes will help reduce management costs and increase
effectiveness. Monitoring also will help confirm our underlying
understanding of mitigation benefits and may help identify where our
assumptions need revision. This is critical to mitigation success.
Bundled or stacked credits cannot be unbundled or unstacked to
offset the effects of multiple projects but can only be used to offset
the effects of a single project. Once a unit of habitat is used as
mitigation for one project, regardless of the number of listed species
it supports, it cannot be used as mitigation a second time.
Comment (46): One comment suggested that it is unclear why the
required inclusion of adjacent ecosystems and human systems, which is
how landscapes are defined, into conservation plans will provide a
benefit to species that do not require those habitats or ecosystems for
survival. The Service should clarify whether it intends mitigation
consistent with a landscape-scale approach to require grouping of
permittee proposed compensatory mitigation projects or grouping of
project proponents, and in situations where this is desired, the
benefits should be explained.
Response: Including consideration of adjacent ecosystems and human
systems into a landscape approach to compensatory mitigation recognizes
the potential effects those systems may have on the species and
habitats under consideration. This is especially important in ensuring
long-term ecologic functioning of the compensatory mitigation that
benefits the species/habitat. We are increasingly aware that adjacent
landscapes and human management actions can significantly affect what
was perceived as a protected area. This policy explicitly recognizes
those factors in developing long-term, comprehensive conservation
strategies for the resources under consideration. Because those
strategies will be implemented using market-based and collaborative
mitigation tools, the Service will work with our conservation partners
to develop effective, feasible measures to put conservation on the
ground. The policy does not require permittee proposed mitigation
projects to be grouped, but they should be considered in the context of
the landscape in which they occur.
Comment (47): One commenter said that most species lack an up-to-
date analysis of conservation status, and few have forward-looking
strategies that the Service intends to rely on in implementing the
policy. Furthermore, not all landscape-scale conservation strategies
noted by the Service are peer-reviewed, publicly vetted, scientifically
sound, or without controversy. If the Service intends to rely on such
strategies in the context of preparing
[[Page 95328]]
recovery plans, status reviews, and similar documents, then these
landscape-scale conservation strategies and the process for
implementing them must be vastly improved. The Service should let the
conservation market identify lands that represent valuable conservation
targets and take advantage of ``market efficiencies'' that are a
benefit of the conservation banking and in-lieu fee forms of
mitigation.
Response: The Service agrees on the importance of using the best
available scientific information in developing conservation strategies.
We rely on our conservation partners to bring their information and
expertise into a collaborative process to help us develop those
strategies. We also appreciate the assistance of the conservation
market in designing, implementing, and expanding our suite of
conservation tools to benefit listed and at-risk species.
Comment (48): One commenter said the policy would benefit from
greater recognition that activities associated with the management,
monitoring, protections, and assurances need not be as robust in some
instances, yet will achieve a functional landscape that is capable of
supporting the conservation of listed and at-risk species, different
from the actions necessary to provide compensatory mitigation for
wetlands and other aquatic resources.
Response: The Service agrees that some larger landscapes may
require less intensive management than smaller areas. However, in most
areas of the country, there are few ``self-regulating'' systems left
that are not greatly influenced by invasive species, altered hydrology,
ongoing erosion, and climate change. It is important in designing
feasible, meaningful mitigation to appropriately scale the monitoring
and management actions to most effectively provide resource benefits.
This will depend on the resources, landscapes, and scale of the
project, and should have a rational connection between the effects
being offset and the benefits provided. We declined to modify the
policy based on this comment.
Comment (49): One commenter said the draft policy's example of a
proactive, landscape-scale mitigation approach provided by songbird
mitigation guidance in Texas to encourage compensatory mitigation
opportunities is misleading. The commenter cited two instances in which
potential conservation banks were precluded from establishing species
credits due to the requirements in the guidance.
Response: We respectfully disagree. The example used in the policy
is intended to show instances where the Service has taken landscape-
scale approaches for species conservation and compensatory mitigation.
We recognize that not all proposals developed under the Texas example
or other local guidance will ultimately be finalized and implemented,
but the intent of this policy is to promote consistency and
predictability so that mitigation providers may develop programs that
are more likely to be implemented.
Comment (50): Some commenters indicated that the policy should
offer far more guidance on when and how the Service would apply a
``landscape-level approach'' to ESA mitigation, questioned whether the
Service would apply a landscape approach differently to species with
different range sizes, and stated that the draft policy does not
explicitly describe how or whether a landscape approach would apply to
listed species with narrow ranges.
Response: The landscape approach to conservation considers the
functional context of the species or habitat under consideration.
Working with our conservation partners and project proponents, the
Service will use a landscape context to provide the most effective and
durable mitigation for listed and at-risk species, while preserving the
greatest flexibility to implement those measures at many scales. Given
the breadth of species and landscapes under consideration, it is
impossible to give a ``one size fits all'' set of instructions. Using a
landscape context to frame mitigation actions should reinforce
functionality at the appropriate scale (i.e., tract, regional, range)
to benefit the target resource and, in most cases, other resources/
species that also rely on that functional system. Though some species
may have relatively narrow ranges, their threats may be best addressed
at a landscape scale (e.g., invasive species, altered hydrology,
climate change). This approach will help ensure the compensatory
mitigation measures will meaningfully offset adverse effects to a
species/habitat in a way that is ecologically sustainable over the long
term.
Comment (51): One commenter noted that the statement requiring
compensatory mitigation to be ``sited in locations that have been
identified in landscape level conservation plans or mitigation
strategies'' does not take into account the limited lands available for
acquisition or restoration in some areas of the United States and the
need to acquire property from willing sellers.
Response: The Service recognizes conservation opportunities vary
across the country by species and habitats. The landscape-scale
approach is a way to place those opportunities in an ecologically
functional context. The policy allows for compensatory mitigation on
public lands (provided certain criteria are met, e.g.,
``additionality'') and on private lands. It also encourages market-
based tools and incentives to take advantage of the unique
circumstances in each area. While there may be limitations in available
lands in some regions, the policy includes a suite of tools that should
provide meaningful options for feasible, durable compensatory
mitigation nationwide.
Comment (52): The policy will result in the creation of a
landscape-scale system of conservation banks and other mitigation sites
controlled by the Service that will take private land and their
resources out of productive use.
Response: The landscape approach to conservation considers the
functional context of the species or habitat under consideration. It
does not affect land ownership or control. Working with our
conservation partners and project proponents, the Service will use a
landscape context to provide the most effective and durable mitigation
for listed and at-risk species, while preserving the greatest
flexibility to implement those measures at many scales. Providing
incentives for a market-based approach to conservation allows many
tools to better meet the needs of species as well as the needs of
landowner/project proponents. Generally, the use of conservation
banking and other mitigation projects will not take resources out of
``productive'' use. Rather, conservation banks and other mitigation
projects located on private land remain under control of the property
owner and often provide other productive uses, such as grazing
livestock.
I. Metrics
Comment (53): One commenter stated that the policy should clarify
that actions can meet ESA conservation standards using mitigation when
adverse effects, and mitigation offsets of those effects, are
calculated using tools that consider more than mere gain or loss of
animals or habitat. For example, tools like Habitat Equivalency
Analysis consider spatial, temporal, and functional parameters that
look beyond mere loss or gain to calculate the extent and quality of
mitigation required in given situations.
Response: A discussion of tools used to calculate mitigation is not
within the scope of this policy.
Comment (54): Several commenters were concerned that adequate
detail
[[Page 95329]]
about how assessment methodologies are developed and applied was not
provided in the draft policy. Commenters were also concerned that the
numerical loss and benefit to a site is largely a qualitative
measurement, and the no methodology for quantification is offered. They
said that transparent formulas to calculate ``mitigation ratios'' are
needed to reduce subjectivity and increase transparency. They also
noted that equivalent metrics for determining losses due to impacts and
gains due to mitigation would aid in the assessment of ``no net loss''
or ``net gain.''
Response: The Service agrees that transparent formulas to calculate
``mitigation ratios'' reduce subjectivity and increase transparency. We
also agree that equivalent metrics for determining losses due to
impacts and gains due to mitigation would aid in the assessment of ``no
net loss'' or ``net gain.'' This policy does include a statement that
equivalent metrics should be used whenever possible.
Details about how to develop and apply assessment methodologies
that are quantitative and transparent were not included in the draft,
or this final, policy, because these details are species-specific and
too complex to describe adequately within the framework of the policy.
When detailed descriptions of assessment methodology development and
application are prepared by the Service for a species-specific
mitigation program, these descriptions are routinely shared with the
public.
Comment (55): One commenter said that since buffers are so
important, they should be counted in the crediting of a mitigation site
at some ratio of a full credit.
Response: The Service agrees with this comment. In section 6.6, the
policy states, ``If buffers also provide functions and services for the
species or other resources of concern, compensatory mitigation credit
will be provided at a level commensurate with the level of functions
and/or services provided to the species.''
Comment (56): One commenter stated that for the purposes of
mitigation, the Service has not shown compelling evidence that adequate
assessment methodologies exist to consider adverse and beneficial
actions that are fundamentally different in nature. Determining the
numerical loss and benefit to a site is largely a qualitative
measurement, and the draft policy offers no quantification methodology.
Response: The policy describes types of mitigation programs or
projects that do not directly replace species or habitat losses
resulting from development projects. These are the types of programs in
which the adverse actions, like habitat development, would be offset by
an action that is fundamentally different in nature, such as gating of
caves that serve as habitat for the species. The Service acknowledges
that these types of credit/debit systems can often be more subjective
than the traditional habitat-for-habitat type of mitigation. However,
this type of mitigation has been the exception rather than the rule,
and we expect Service staff to use other programs or projects only when
they are the best option to alleviate the greatest threats to the
species involved. When these programs or projects are allowed as
mitigation, the Service will clearly explain the link between the
threat and the selected mitigation.
Comment (57): One commenter was concerned that there was no
discussion of how successful ``surrogate'' indicators of incidental
take have been in assuring adequate mitigation.
Response: The use of surrogate indicators for the species impacted,
such as the species' habitat, when applying compensatory mitigation in
accordance with 50 CFR 402.14(i)(1)(i) is discussed at section 5.2 of
the policy. We declined to add additional detail to that discussion.
Comment (58): One commenter suggested that the Service require that
all credits and debits associated with the same species and region be
aggregated and reported across all compensatory mitigation mechanisms.
They indicated this is critical to ensure an offset achieves ``net
conservation gain,'' to ensure the offsets created by all mechanisms
are using the best available science, and to ensure equivalency across
multiple mechanisms. They also suggested when the same metric is not
used by two different mechanisms; the requirement to define ``the
relationship (conservation) between credits and debits'' can also be
used to define the relationship between different credit metrics.
Response: Currently, the Service uses the Regulatory In-lieu Fee
and Banking Information Tracking System (RIBITS) to track credits and
debits for conservation banks. The Service intends to work with the
USACE to adapt RIBITS for use by the Service to also track credits and
debits for in-lieu fee programs. The type of credits that are
acceptable for a given species is determined by the Service when a
mitigation program for a specific species is developed and implemented.
The Service agrees that tracking the types and amounts of credits used
across a species' range is a good idea, as it informs our understanding
of the species' status. Collecting this type of information and working
to achieve consistency requires coordination among Service staff,
including those from different program areas. Describing the actions
necessary to ensure this coordination occurs is beyond the scope of
this policy.
Comment (59): One commenter suggested a monitoring and verification
process should be required of all mitigation. They said the
verification process should include a method to verify that the
outcomes of the project achieve the performance standard throughout the
entire life of the mitigation project, and that method could be the
initial assessment method or an abbreviated assessment that still
quantifies the quality of the resource. They also suggested the party
responsible for conducting the verification should be identified
upfront.
Response: We agree that these are important requirements to ensure
that mitigation remains adequate over time. Specific methodologies for
such verification are beyond the scope of this policy.
Comment (60): One commenter said it should be made explicitly clear
that while adaptive management is critical as knowledge and conditions
change, the necessary updates to metrics or plans do not invalidate
previous metrics or credits. They suggested that each credit, and debit
if applicable, should be labeled with the method used at the time of
assessment. They also suggested that reports should acknowledge when
metrics are modified, but credits should still be aggregated across
time. They noted that it may be necessary to use a correction method,
and these correction methods should be transparent, scientifically
supported, and included in all reports.
Response: We agree in concept; however, this comment goes beyond
the scope of the policy.
Comment (61): One commenter asked that we clarify that plans should
rely more on the criteria that define high-quality habitat, including
criteria for landscape-scale attributes, indicating these criteria
should be consistently reflected in the development of metrics used to
define credits and debits within the region. They noted that
opportunities to enhance and protect habitat may be outside of
predefined conservation areas, but they must meet the definition for
high-quality habitat and be deemed acceptable.
Response: We agree that metrics should define high-quality habitat.
We also agree that opportunities to enhance
[[Page 95330]]
and protect habitat may be outside of predefined conservation areas,
and regardless of location, they should meet the definition for high-
quality habitat and be deemed acceptable. This concept is captured in
the final policy.
Comment (62): One commenter liked the concept that ecological
performance criteria must be tied to conservation goals and specific
objectives identified in compensatory mitigation programs and projects,
but they did not think the draft policy adequately describes how to
accomplish this objective.
Response: The level of detail necessary to describe how to
accomplish this objective is beyond the scope of this policy and may be
addressed in implementation guidance.
Comment (63): One commenter stated the draft policy should more
explicitly recognize the uncertainty associated with mitigation for
certain species and describe a framework for managing the uncertainty.
They said the policy should describe a framework the Service would use
to assess the appropriate balance of avoidance, minimization, and
mitigation, as informed by the likelihood of mitigation effectiveness
and the species' recovery needs.
Response: The Service agrees that there is uncertainty associated
with mitigation for certain species. This policy includes a discussion
of risk management tools. These tools can be used after the Service
determines that a mitigation program or project is appropriate.
Assessing risks and determining if mitigation is appropriate for a
species is not within the scope of this policy, as uncertainty
associated with mitigation for certain species will be fact specific.
J. Additionality
Comment (64): We received two comments on the draft policy's use of
``additionality'' when developing compensatory mitigation on both
public and private lands. Commenters believed additionality is not
feasible when coupled with the ``no net loss'' goal, and that some
inconsistencies exist in the descriptions in the text of the draft
policy.
Response: One purpose of using ``additionality'' as a standard in
the policy is to promote the ``net gain/no net loss'' goal. There are
many examples of mitigation sites and programs that have achieved these
standards. The concept of compensatory measures providing additional
benefits above baseline conditions is described in general terms in the
policy. Those descriptions in the text are intended to give context to
the conservation benefits of mitigation actions being additive to
baseline conditions on both private and public lands.
K. Durability
Comment (65): Some commenters were concerned that the requirement
for perpetual management of mitigation sites places an undue burden on
mitigation providers, or that perpetual management would be detrimental
to the resource. They said that the imposition of perpetual endowment
and adaptive management places burdens on all projects, and it would be
impossible for industry to manage and maintain mitigation sites in
perpetuity.
Response: Perpetual management of mitigation sites is essential to
assure durability of compensatory mitigation. The species and resources
present on a mitigation site will dictate what management actions are
undertaken. Management plans are tailored to the needs of the site.
Mitigation providers should carefully consider the long-term commitment
they are making when they agree to implement a compensatory mitigation
project. Mitigation that is permanent is expected to have appropriate
financial and real estate assurances to meet the durability standard in
the policy.
L. Collaboration and Coordination
Comment (66): One commenter said the policy would mandate the
Service to work directly with landowners, potentially resulting in the
loss of confidential information. The commenter noted recent
conservation plans produced in Texas were developed by stakeholders and
administered through State agencies to preserve confidentiality of
private landowners.
Response: The Service has a long history of working with private
landowners to conserve fish and wildlife resources, including
endangered and threatened species. Our partnerships with private
landowners are essential to achieving our conservation mission. The
policy does not include a mandate to work directly with landowners, but
supports the ESA and its implementing regulations, which allows us to
work with a variety of entities towards the recovery of listed species,
and encourages cooperative conservation with all of our partners,
including the exchange of ideas and information to better inform
species management and evaluation. As noted in the policy, transparency
in compensatory mitigation programs and ESA implementation is essential
to achieving success. The Service is considerate of confidentiality,
and any personal information maintained by the Service is protected by
law (e.g., Freedom of Information Act, 5 U.S.C. 552; Privacy Act, 5
U.S.C. 552a) to prevent unlawful dissemination.
Comment (67): One commenter was concerned that the Service
developed the policy without having addressed concerns raised by States
and other parties regarding the Service's mitigation policy. They said
that moving forward with this guidance without finalizing the
overarching mitigation policy was premature, and created uncertainty
and confusion over what the Service was likely to adopt.
Response: This compensatory mitigation policy is a step-down policy
under the final Service mitigation policy, which published in the
Federal Register on November 21, 2016 (81 FR 83440). There were no
substantial changes between the draft and final Service mitigation
policy. In finalizing the Service's mitigation policy, we fully
considered all comments and concerns raised by States and other
parties. We also considered those comments as we developed this policy.
Comment (68): Two commenters addressed the relationship between
this policy and mitigation policy developments underway in other
agencies. One commenter was concerned that while interagency
cooperation is addressed in the draft policy, it only provided a
history of previous ESA requirements. They were concerned that the
draft policy did not address the relationship between similar policies
being developed by other Federal land management agencies such as the
Bureau of Land Management and the U.S. Forest Service. Another
commenter noted that other Federal agencies are also responding to the
Presidential memorandum (``Mitigating Impacts on Natural Resources From
Development and Encouraging Related Private Investment'') issued
November 3, 2015. They said that this created the opportunity for the
Service to enter into agreements with other Federal agencies to work
together on the implementation of similar mitigation policies and to
avoid conflicts, delays, and inefficiencies.
Response: At the time this policy is being finalized, neither the
Bureau of Land Management nor the U.S. Forest Service has published
final mitigation policies or regulations. The Service did provide
comments on their proposed policies, and we did receive comments on
this policy from those agencies. This policy, like the Service
mitigation policy published November 21, 2016 (81 FR 83440), was
developed in accordance with the November 3, 2015, Presidential
Memorandum; the
[[Page 95331]]
Secretary of the Interior's Order 3330 entitled, ``Improving Mitigation
Policies and Practices of the Department of the Interior'' (October 31,
2013); and Departmental Manual chapter (600 DM 6) on Landscape-Scale
Mitigation Policy (October 23, 2015). The commenter's concern is
anticipated by those documents, which envision the various agencies'
mitigation policies applying common principles, terms, and approaches,
thereby providing greater consistency and predictability for the
public. Subsequent agreements between the Service and other agencies
may be developed as need arises.
Comment (69): One commenter said the draft policy would be improved
if it built upon and utilized the USACE and EPA's definitions and
mitigation policies. They said that a reconciliation of terms and
process should be part of the Service's next steps.
Response: We agree that this policy should apply concepts and
definitions compatible with those developed through decades of
mitigation practice under the Clean Water Act. Accordingly, we have
developed this policy to use the same terms and approaches found in
regulations and guidance promulgated by the USACE and EPA whenever
possible. In some cases, we also recognized the need for language
tailored to authorities, processes, and resources covered by the ESA
rather than the Clean Water Act; in these cases, the policy's language
complies with the Departmental Manual on Landscape-Scale Mitigation
Policy (600 DM 6).
Comment (70): One commenter said that the implementation of this
policy will establish an inconsistent ESA framework because the
National Marine Fisheries Service did not adopt the Service's
mitigation policy (81 FR 83440, November 21, 2016). The commenter said
this approach is contrary to the typical practice of promulgating joint
regulations by the two agencies that provide for uniform application of
the ESA. The commenter stated that by unilaterally proposing this
policy and the Service mitigation policy (81 FR 83440, November 21,
2016), the Service is creating disparate requirements that will impose
significant and additional regulations on project sponsors based on the
possibility of a species being affected.
Response: This policy is not a rulemaking and cannot otherwise
alter or substitute for the existing regulations applied by both the
National Oceanic and Atmospheric Administration (NOAA) and the Service
in implementing the ESA. We also have coordinated development of both
this policy and the Service mitigation policy (81 FR 83440, November
21, 2016) with NOAA, and incorporated their suggestions and
modifications. Also, this policy was required under the Presidential
Memorandum on Mitigation, the Department of the Interior Secretarial
Order 3330, and 600 DM 6.
Comment (71): One commenter said that the Service and other
agencies risk unnecessary duplication of efforts and conflicting
requirements, which will further delay project approval. They
encouraged the Service to consider mitigation frameworks already in
place before adding another layer of mitigation requirements to an
already complex and burdensome project approval process.
Response: We agree that existing mitigation programs and
frameworks, as well as existing mitigation and conservation plans,
should be considered. The Service recognizes that there may be existing
plans developed by State and local governments and other stakeholders
with characteristics that may be useful in mitigation planning
depending on the specific action and the affected resources. The
Service will work with project proponents and other stakeholders in
reviewing existing programs, frameworks, and plans for applicability in
the context of a specific action.
Comment (72): One commenter said the policy would complicate other
agencies' processes. They said that it would increase opportunities for
the Service to force concessions from other Federal agencies and
permittees, and that it has the potential to violate organic acts and
will undoubtedly complicate the approval process for mining operations
and other land users.
Response: The scope of this policy does not limit the existing
discretion of an action agency, or hold the action agency or applicant
responsible for mitigation beyond an action agency's own authority,
mission, and responsibilities. The Service recognizes that the
authorities and processes of different agencies may limit or provide
discretion regarding the level of mitigation for a project. This policy
is not controlling upon other agencies, and the Service acknowledges
that there may be limitations (e.g., agency-specific authorities and
600 DM 6) on the implementation of measures that would achieve the
policy's goal of ``net conservation gain'' or a minimum of ``no net
loss'' when the costs of such mitigation are reimbursable by project
beneficiaries under laws and regulations controlling agencies'
activities (e.g., Bureau of Reclamation). Other agencies may
voluntarily adopt Service recommendations, which may expedite their
other requirements.
Comment (73): Some commenters expressed interest in a collaborative
approach to mitigation planning on a landscape level. One commenter
expressed support for additional engagement with stakeholders; another
commented that the role of State wildlife data, analyses, and expertise
should be utilized to the greatest extent possible; another commenter
was skeptical of the collaborative approach preferred by the Service.
Response: The Service agrees that developing multi-scale
conservation plans and strategies benefits from many invested
stakeholders that bring their unique insights and perspectives to
ensure a more comprehensive and robust blueprint, and looks forward to
building on our conservation partnerships through collaborative
planning efforts. Our State partners in particular are critical to
successful compensatory mitigation of federally listed and at-risk
species. They bring statutory responsibility, data, expertise, and
management capabilities to better ensure successful, durable mitigation
efforts on the ground.
Comment (74): Several commenters were concerned about the level of
coordination undertaken by the Service on establishment of mitigation
programs, and encouraged the Service to engage with both mitigation
partners and with State agencies, to avoid duplication of effort and
cross-jurisdictional issues and to improve outcomes. One commenter
urged the Service to expedite reviews by working with agencies that
already have established mitigation policies and programs.
Response: The Service agrees that we have common goals with our
partners and achieve much better outcomes when we work together on
coordinated mitigation programs, especially where our jurisdiction
overlaps with that of other agencies as it often does with our State
wildlife agency partners. The Service intends to continue working with
all of our partners.
M. Transparency
Comment (75): One commenter requested clarification on the
Service's meaning of ``direct oversight'' in the draft policy regarding
compensatory mitigation programs and projects. The commenter also
requested clarification on use of third-party evaluators in preparing
monitoring reports for programs or projects.
Response: The policy identifies the Service's authority for direct
oversight
[[Page 95332]]
of compensatory mitigation programs and projects through sections 7 and
10 of the ESA. Under sections 7 and 10, the Service oversees the terms
and conditions of the incidental take permit (section 10) or of the
incidental take statement (section 7). Details on the roles of third-
party evaluators involved in specific project actions are beyond the
scope of the policy.
Comment (76): We received several comments pertaining to the
availability of information generated from mitigation programs.
Commenters recommended the policy include standards for transparency of
data and documents, participation of stakeholders, and consistency of
data reported through mitigation programs.
Response: Information on conservation banks is available to the
public on the Regulatory In-lieu Fee and Banking Information Tracking
System (RIBITS), and the Service intends to work with the USACE to add
Service-approved in-lieu fee programs to that platform. As noted in the
policy, the Service will share appropriate information concerning
mitigation programs with the public, with the exception of personally
identifiable information or other information that would be exempt
under the Freedom of Information Act. We declined to add specific
standards for transparency to the policy. Prescriptive standards for
the type of data to be shared would not be reasonable for a policy that
covers the myriad listed species across the country. Such standards
would be better suited for species-specific guidance.
N. Preference for Advance Mitigation
Comment (77): One commenter stated the policy should adopt an
approach similar to that taken in the HCP handbook to identify
exceptions to the requirement to mitigate in advance of impacts.
Response: The policy is intended to provide standards and guidance
to improve consistency of compensatory mitigation programs and projects
for listed, proposed, and at-risk species. The preference for advance
mitigation is based on the years of experience with compensatory
mitigation programs. We realize that in some cases advance mitigation
may not be possible, or even preferable; however, attempting to
identify exceptions for this preference would not be reasonable,
considering the vast diversity of species and programs that would occur
across the country.
Comment (78): Several commenters were concerned about the draft
policy's preference for compensatory mitigation in advance of project
impacts. One commenter specifically identified that reclamation of
mining operations often lacks the ability for advanced mitigation on
site. Other commenters cited that: The process of project permitting
and financing determinations would likely not allow for advanced
mitigation; the Service should provide incentives such as higher ratios
for ``after impact mitigation''; advance mitigation would be considered
pre-decisional; or it is impossible to provide mitigation in advance of
impacts.
Response: We recognize that project scheduling and implementing on-
site mitigation may not always align with the Service's preference for
advance mitigation; however, conservation banks, in-lieu-fee programs,
and other third-party mechanisms provide advanced mitigation options
that reduce timing and other constraints. The Service's current
practice to recommend mitigation in advance of impacts under sections 7
and 10 of the ESA is based on years of experience in compensatory
mitigation practices. This policy promotes the development of advanced
mitigation mechanisms, providing more options for mitigation users. The
Service agrees that mitigation ratios can be used to incentivize
mitigation accomplished in advance of impacts, but the discussion of
specifics is beyond the scope of this policy. The Service does not
consider advance mitigation to be pre-decisional, as the majority of
advance mitigation programs, such as conservation banking, are
established prior to any impacts, and projects that will mitigate at
such sites may be unknown at the time of bank establishment. In all
cases, the Service will evaluate the appropriateness of using a
specific site or proposal as compensatory mitigation to offset the
unavoidable impacts of a project at the time the Service reviews the
project that will likely result in the impacts.
O. Eligible Lands
Comment (79): Several commenters supported mitigation projects and
programs on public lands and wanted us to add more flexibility to the
policy. One commenter stated that if mitigation projects and programs
occur on public lands, the land manager should be prepared to implement
and fund alternative mitigation if a change in law allows incompatible
uses to occur on mitigation lands. One commenter did not support
mitigation projects and programs on Federal lands, but was in favor of
it on State lands, and wanted State lands specifically mentioned in the
policy.
Response: Compensatory mitigation can occur on public lands, either
Federal or State lands, and in some cases, such siting may lead to the
best ecological outcome. Compensatory mitigation for impacts on public
lands can be sited on both public and private lands. Compensatory
mitigation for impacts on private lands can be located on public lands,
but it is this combination, or that particular change in ownership
classification, where Service staff should be attentive to additional
considerations before making such a recommendation. These additional
considerations are necessary to achieve the ``net gain'' or, at a
minimum ``no net loss,'' goal of the policy.
Comment (80): Several commenters provided comments on split
estates. Commenters said the Service is arbitrarily limiting areas on
which mitigation can occur by not allowing lands with split estates to
qualify as mitigation lands; split estates do not necessarily result in
an unsuitable mitigation site; and the holder of the rights would have
to secure their own authorization under the ESA from the Service prior
to exercising their rights.
Response: The Service agrees that there are cases in which lands
with split estates can be used for mitigation. The policy advises
caution because we strive to ensure the durability of mitigation
projects and programs, but the policy does mention possible remedies
and that there could be other approaches to using lands with split
estates for mitigation. A detailed discussion of remedies and other
approaches is not within the scope of this policy.
P. Tribal Lands/Tribal Rights
Comment (81): We received some comments regarding the siting of
mitigation projects on tribal lands or on lands on which tribes hold
treaty rights. One commenter expressed the need for local mitigation
projects to be sited in or near reservation lands as well as on
traditional off-reservation sites, to benefit the natural resources of
the native peoples; another commenter was concerned that locating
mitigation outside of treaty areas for projects that impact the
resources in treaty areas would harm the treaty rights and the
resources of the tribes. Other commenters asked that tribes be
consulted in the siting and approval of mitigation sites and programs.
Others were concerned about the impacts of habitat restoration and
long-term management on treaty resources.
Response: The Service is committed to upholding our trust
responsibilities to federally recognized tribes to conserve shared
natural resources, consistent with the Service's Native American
[[Page 95333]]
Policy (revised January 2016; see 81 FR 4638, January 27, 2016). This
is accomplished under this policy by ensuring that mitigation projects
and programs are located in areas that provide the most benefit to the
affected resources, while respecting treaty rights. The Service
recognizes the importance of tribal involvement and expertise when
siting mitigation projects and when developing service areas and
management plans for conservation banks and other types of mitigation
mechanisms. Specific guidance on Service coordination with tribes is
beyond the scope of this policy.
Comment (82): We received some comments requesting specific
guidance on facilitating creation of conservation banks on tribal
lands, comments on including tribal cultural uses and practices as
allowable uses on mitigation lands, and a suggestion for developing
mitigation principles similar to those developed with the USACE in the
State of Washington for specific mitigation programs.
Response: The Service agrees that these are all important
considerations, and such guidance and suggestions will be more
effectively addressed in step-down guidance at a later time.
Comment (83): We received comments regarding the applicability of
the policy to tribes, or to a specific HCP under development, and a
suggestion that the Service consult with any tribes who so request
before finalizing this policy.
Response: The Service notified tribal contacts when we made the
draft policy available for review and comment (81 FR 61032, September
2, 2016). We addressed all tribal comments, as appropriate, as we
developed the final policy. The policy applies to all forms of
compensatory mitigation for all species and habitat protected under the
ESA and for which the Service has jurisdiction. The policy is flexible
with regard to its application to specific mitigation projects or
programs that are under development at the time this policy is
finalized, leaving that decision to individual Service offices.
Q. Service Areas
Comment (84): Several commenters requested more detail in the
policy about requirements for developing service areas.
Response: Specific considerations for developing service areas are
beyond the scope of this policy and will be provided in implementation
guidance.
R. Credit Bundling
Comment (85): A few commenters were concerned about credit
bundling, also known as credit stacking, where multiple resources exist
on the same unit area. One commenter was concerned that any resources
bundled or stacked with a listed species would suffer, as the site
would be managed only for the benefit of the listed species and not the
other resource(s), and wanted multi-agency review teams to be aware of
this when authorizing mitigation banks. Other commenters wanted the
Service to make it clear that credits could potentially be used for
multiple purposes, and another wanted the Service to allow mitigation
credits to be used to compensate for multiple impact projects.
Response: The Service encourages credit bundling where multiple
resources exist on the same unit area and where management actions
benefit those multiple resources. However, bundled credits can only be
used to compensate for one impact project (i.e., the credits can never
be ``unbundled'' or ``unstacked'' to compensate for multiple projects).
If two resources, such as a California red-legged frog (CRLF) and a
wetland regulated pursuant to section 404 of the Clean Water Act are
bundled together in a credit, that credit may be used to compensate for
impacts to both resources from the same project, or to compensate for
impacts to CRLF or to wetlands. If the credit were used to compensate
for CRLF, then it can no longer be used to compensate for wetlands
(i.e., that portion of the credit is ``retired''). Unbundling these
functions and services would result in a net loss of habitat and would
undermine the Service's efforts to conserve the species. This approach
is consistent with the policies and regulations of the USACE, and other
State and Federal agencies the Service works with on multi-agency-
approved mitigation projects and programs.
S. Mitigation Mechanisms
Comment (86): One commenter suggested the Benefits of the Draft
Policy section be clarified to include other mitigation mechanisms that
may not be market-based. The commenter suggested that the first
sentence of the final paragraph of that section be modified to read:
``This draft policy would encourage mitigation in conjunction with
programmatic approaches to ESA section 7 consultations and HCPs
designed to focus on conservation outcomes that achieve ``no net loss''
or ``net gain'' through the use of market-based approaches (e.g.,
conservation banks), in-lieu fee programs, permittee-responsible, and
other third-party implemented mitigation programs.''
Response: The Service considers that one of the benefits of this
policy is the opportunity it creates for a market-based approach to
mitigation as highlighted in the Presidential Memorandum of November 3,
2015, on Mitigating Impacts on Natural Resources From Development and
Encouraging Related Private Investment (80 FR 68743, November 6, 2015),
especially those that can be established in advance of impacts.
Conservation banking is a proven example of this approach. The policy
does not preclude the other mechanisms mentioned by the commenter. We
declined to adopt the commenter's suggested sentence.
Comment (87): Several commenters stated that the draft policy was
confusing and complex, citing the Service's definition of compensatory
mitigation being too broad, lack of a mitigation protocol, and need for
a guidance document to ensure a separation of regulatory and
nonregulatory authority, goals, and standards. One comment stated the
complexity of obtaining approval, as well as cost, for a mitigation
site would discourage investment.
Response: One purpose of the policy is to provide predictability
and thereby reduce uncertainty of investment for market-based
mitigation programs. We acknowledge that the nature of existing
compensatory mitigation mechanisms and programs currently being
implemented is complex. We have revised the draft policy so that this
final policy addresses overarching goals and standards only, and we
will later provide more detailed implementation guidance. However,
providing a mitigation ``protocol'' that covers the breadth of species
and circumstances across the country would not be reasonable. We
anticipate species- or geographic-specific guidance to be developed
under the umbrella of this policy.
Comment (88): We received two comments regarding section 7.2,
Short-Term Compensatory Mitigation, in the draft policy. One comment
indicated it may not be helpful, particularly when dealing with aquatic
species. The other requested more detail in this section and stressed
it should be more widely used.
Response: The use of short-term compensatory mitigation is a novel
approach, with long-term results yet to be evaluated. The policy fully
acknowledges that it is likely to be limited in use, for a variety of
reasons, primarily the ability to predict all temporal losses of an
impact in order to provide an appropriate offset for those losses.
However, the concept may be
[[Page 95334]]
useful in some circumstances. Thus, it is included in the policy in an
effort to provide additional flexibility to conserve listed, proposed,
and at-risk species.
Comment (89): Several commenters requested that the Service express
a preference for conservation bank credits over other forms of
compensatory mitigation. One commenter requested the Service add a
preference for rehabilitation or restoration over preservation and that
the Service prohibit use of alternative forms of mitigation if
conservation bank credits are available in the same proposed service
area.
Response: As stated in section 6 of this policy, the appropriate
form of compensatory mitigation must be based on the species' needs and
the nature of the impacts adversely affecting the species. All
mitigation tools listed in the policy are capable of being
strategically sited, consolidated, and provided in advance of impacts
if they are designed to do so. These preferences will provide the best
outcomes for species when they are implemented in any mitigation tool,
and, therefore, we have retained flexibility for applicants when
selecting mitigation tools. We decline to prohibit the use of
alternative forms of mitigation where conservation bank credits are
available, as that would limit flexibility and inherent choice of the
applicant(s).
T. Climate Change
Comment (90): Several commenters addressed sections of the draft
policy that referenced climate change for consideration in mitigation
planning. Some commenters were concerned about the uncertainty of
calculating the effects of climate change for compensatory mitigation
and the use of mitigation ratios to address climate change. One
commenter said the policy should provide more detail on integrating
climate change effects in the analysis of mitigation programs. Another
requested the basis for the term ``accelerated'' climate change used in
the policy.
Response: Consistent with the Departmental Manual (600 DM 6), the
Service recommends that climate change be considered when evaluating
the effects of an action and developing appropriate mitigation
measures. The Service recognizes the science of climate change is
advancing, and assessment methodologies are continually being refined
to address the effects of climate change to specific resources and at
differing scales. Including specific information on these topics is
beyond the scope of this policy. Therefore, the policy is written with
language to ensure that it does not become quickly outdated as
methodologies evolve. We use the term ``accelerated climate change'' in
a general sense to reference a substantial portion of scientific
literature and scholarly articles on the subject, including reports
produced by the Intergovernmental Panel on Climate Change.
The final policy follows:
U.S. Fish and Wildlife Service
Endangered Species Act Compensatory Mitigation Policy
1. Purposes
This policy adopts the mitigation principles established in the
U.S. Fish and Wildlife Service (Service) Mitigation Policy (81 FR
83440, November 21, 2016), establishes compensatory mitigation
standards, and provides guidance for the application of compensatory
mitigation through implementation of the Endangered Species Act of
1973, as amended (ESA; 16 U.S.C. 1531 et seq.). Compensatory mitigation
(compensation) is defined in this policy as compensation 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 (600 DM 6.4C). This policy
applies to all Service compensatory mitigation requirements and
recommendations involving ESA compliance. It is also intended to assist
other Federal agencies carrying out their statutory and regulatory
responsibilities under the ESA and to provide applicants with guidance
on the appropriate use of compensatory mitigation for proposed actions.
The standards and guidance in the policy will also assist mitigation
providers in developing compensatory mitigation project proposals.
Adherence to the principles, standards, and guidance identified in
this policy is expected to: (1) Provide greater clarity on applying
compensatory mitigation to actions subject to ESA compliance
requirements; (2) improve consistency and predictability in the
implementation of the ESA by standardizing compensatory mitigation
practices; and (3) promote the use of compensatory mitigation at a
landscape scale to help achieve the purposes of the ESA.
This policy encourages Service personnel to collaborate with other
agencies, academic institutions, nongovernmental organizations, tribes,
and other partners to develop and implement compensatory mitigation
measures and programs through a landscape-scale approach to achieve the
best possible conservation outcomes for activities subject to ESA
compliance. It also encourages the use of programmatic approaches to
compensatory mitigation that have the advantages of advance planning
and economies of scale to: (1) Achieve a net gain in species'
conservation; (2) reduce the unit cost of compensatory mitigation; and
(3) improve regulatory procedural efficiency.
Appendices A and B provide a list of acronyms and a glossary of
terms used in this policy, respectively.
2. Authorities and Coordination
This policy is focused on compensatory mitigation that can be
achieved under the ESA. The Service's authority to require mitigation
is limited, and our authority to require a ``net gain'' in the status
of endangered and threatened (listed) or at-risk species has little or
no application under the ESA. However, we can recommend the use of
mitigation, and in particular compensatory mitigation, to offset the
adverse impacts of actions under the ESA. Other statutes also provide
the Service with authority for recommending compensatory mitigation for
actions affecting fish, wildlife, plants, and their habitats (e.g.,
Fish and Wildlife Coordination Act (FWCA; 16 U.S.C. 661-667e), National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), and Oil
Pollution Act (33 U.S.C. 2701 et seq.)). In addition, statutes such as
the Clean Water Act (CWA; 33 U.S.C. 1251 et seq.) and Federal Power Act
(16 U.S.C. 791a-828c) provide other Federal agencies with authority to
recommend or require compensatory mitigation for actions that result in
adverse effects to species or their habitats. These other authorities
are often used in combination with, or to supplement the authorities
under, the ESA to recommend or require compensatory mitigation for a
variety of resources including at-risk species and their habitats. For
example, the ESA and the Federal Land Policy and Management Act (43
U.S.C. 1701 et seq.) together provide a greater impetus to conserve
desert tortoise habitat than either statute alone.
Synchronizing environmental review processes, especially through
early coordination with project proponents, allows the Service to
provide comments
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and recommendations for all mitigation types (i.e., avoidance,
minimization, and compensation) included as part of proposed actions in
an effort to reduce impacts to listed, proposed, and at-risk species
and designated and proposed critical habitat. For example, the Service
may comment on proposed actions under NEPA and State environmental
review statutes (e.g., California Environmental Quality Act and Hawaii
Environmental Policy Act). Coordination of environmental review
processes generally results in conservation outcomes that have a
greater likelihood of meeting the Service's mitigation goal.
The supplemental mandate of NEPA (42 U.S.C. 4335) adds to the
existing authority and responsibility of the Service to protect the
environment when carrying out our mission under the ESA. The Service's
goal is to provide a coordinated review and analysis of the impacts of
proposed actions on listed, proposed, and at-risk species, and
designated and proposed critical habitat that are also subject to the
requirements of other statutes such as NEPA, CWA, and FWCA.
Consultation, conference, and biological assessment procedures under
section 7 and permitting procedures under section 10(a)(1)(B) of the
ESA can be integrated with interagency cooperation procedures required
by other statutes such as NEPA or FWCA. This is particularly the case
for cumulative effects. Cumulative effects are often difficult to
analyze, are defined differently under different statutes, and are
often not adequately considered when making decisions affecting the
type and amount of mitigation recommended or required.
3. Scope
The ESA Compensatory Mitigation Policy covers all forms of
compensatory mitigation, including, but not limited to, permittee-
responsible mitigation, conservation banking, in-lieu fee programs, and
other third-party mitigation projects or arrangements, for all species
and habitat protected under the ESA and for which the Service has
jurisdiction. Endangered and threatened species, species proposed as
endangered or threatened, and designated and proposed critical habitat,
are the primary focus of this policy. Candidates and other at-risk
species would also benefit from adherence to the standards set forth in
this policy, and all Service programs are encouraged to develop
compensatory mitigation programs and tools to conserve at-risk species
in cooperation with States and other partners.
This policy does not apply retroactively to approved mitigation
programs; however, it does apply to amendments and modifications to
existing conservation banks, in-lieu fee programs, and other third-
party compensatory mitigation arrangements unless otherwise stated in
the mitigation instrument. Examples of amendments or modifications to
which this policy applies include authorization of additional sites
under an existing instrument or agreement, expansion of an existing
site, or addition of a new type of resource credit such as addition of
a new species credit.
This policy does apply to other Federal or non-Federal actions
permitted or otherwise authorized or approved prior to issuance of this
policy under circumstances where the action may require additional
compliance review under the ESA if: New information becomes available
that reveals effects of the action to listed species or critical
habitat not previously considered; the action is modified in a manner
that causes effects to listed species and critical habitat not
previously considered; authorized levels of incidental take are
exceeded; a new species is listed or critical habitat is designated
that may be affected by the actions; or the project proponent
specifically requests the Service to apply the policy. This policy does
not apply to actions that are specifically exempted under the ESA. It
also does not apply where the Service has already agreed in writing to
mitigation measures for pending actions, except where new activities or
changes in current activities associated with those actions would
result in new impacts, or where new authorities, or failure to
implement agreed upon recommendations warrant new consideration
regarding mitigation. Service offices may elect to apply this policy to
actions that are under review as of December 27, 2016,
This policy clarifies guidance given in the Service's ``Guidance
for the Establishment, Use, and Operation of Conservation Banks,''
published in the Federal Register on May 8, 2003 (68 FR 24753), and
``Guidance on Recovery Crediting for the Conservation of Threatened and
Endangered Species,'' published in the Federal Register on July 31,
2008 (73 FR 44761).
4. Application of Compensatory Mitigation Under the ESA
Sections of the ESA under which the Service has authority to
recommend or require compensatory mitigation for species or their
habitat are identified below. In this section, we provide guidance on
applications of these ESA authorities within the context of
compensatory mitigation. The compensatory mitigation standards set
forth in section 5. Compensatory Mitigation Standards of this policy
apply to compensatory mitigation programs and projects established
under the ESA, as appropriate.
4.1. Section 7--Interagency Cooperation
Section 2(c)(1) of the ESA directs all Federal departments and
agencies to conserve endangered and threatened species. ``Conserve'' is
defined in section 3 of the ESA as all actions necessary to bring the
species to the point that measures provided pursuant to the ESA are no
longer necessary (i.e., recovery or the process through which recovery
of listed species is accomplished). This requirement to contribute to
the conservation of listed species is reaffirmed in section 7(a)(1) of
the ESA. Congress recognized the important role Federal agencies have
in conserving listed species.
When the ESA was enacted in 1973, section 7 was a single paragraph
directing ``all Federal departments and agencies . . . [to] utilize
their authorities in furtherance of the purposes of [the ESA] by
carrying out programs for the conservation of endangered species and
threatened species listed pursuant to section 4 of [the ESA] and
[emphasis added] by taking such action necessary to insure that actions
authorized, funded, or carried out by them do not jeopardize the
continued existence of such endangered species and threatened species
or result in the destruction or modification of habitat of such species
which is determined . . . to be critical.'' In 1979, section 7 was
amended to create subsections 7(a)(1) and 7(a)(2). Federal agencies
have separate responsibilities concerning species and their habitats
under these two subsections. Section 7(a)(1) is a recovery measure that
requires Federal agencies to carry out programs for the conservation of
listed species. Section 7(a)(2) is a stabilization measure that
requires Federal agencies to ensure actions they authorize, fund, or
carry out are not likely to jeopardize the continued existence of a
listed species or destroy or adversely modify critical habitat.
4.1.1. Section 7(a)(1)
Section 7(a)(1) of the ESA states, ``. . . Federal agencies shall,
in consultation with and with the assistance of the Secretary, utilize
their authorities in furtherance of the purposes of [the ESA] by
carrying out programs for the conservation of
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endangered species and threatened species.'' The Secretary's section
7(a)(1) consultation role has been delegated to the Service, and the
Service therefore consults with and assists Federal agencies to
accomplish these conservation programs. ``Conservation,'' as it is
defined in section 3 of the ESA, means ``to use and the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to this Act are no longer necessary.'' Through this
policy, the Service encourages Federal agencies to use section 7(a)(1)
to achieve a goal of a ``net gain'' through their mitigation policies
and approaches so that they may help bring endangered and threatened
species to the point where they no longer need to be listed pursuant to
the ESA.
Mitigation Goal: Development of landscape-scale conservation
programs for listed and at-risk species that are designed to achieve a
net gain in conservation for the species.
Guidance: One way that Federal agencies can meet their
responsibility under section 7(a)(1) of the ESA is by working with the
Service and other conservation partners to develop landscape-scale
conservation plans that include compensatory mitigation programs
designed to contribute to species recovery. Landscape-scale approaches
to compensatory mitigation, such as conservation banking and in-lieu
fee programs, are more likely to be successful if Federal agencies,
especially those that carry out, fund, permit, or otherwise authorize
actions that can use these programs, are involved in their
establishment and support their use. For example, the Federal Highway
Administration, as part of its long-term planning process, can use its
authorities to work with the Service and other conservation partners on
conservation programs for listed species that may be impacted by
anticipated future actions. The conservation programs can include
identifying priority conservation areas, developing crediting
methodologies to value affected species, and developing guidance for
offsetting those impacts that is expected to achieve ``no net loss,''
or even a ``net gain,'' in conservation for the species. These tools
and information can then be used by conservation bank sponsors and
other mitigation providers to develop compensatory mitigation
opportunities (e.g., conservation banks) for use by the Federal Highway
Administration, and also by State departments of transportation and
other public and private entities seeking compensation to offset the
impacts of their actions for those same species. The resulting
compensatory mitigation program provides conservation for the species
that would otherwise not have been achieved--a contribution to listed
species conservation under section 7(a)(1) of the ESA by the Federal
agency.
4.1.2. Section 7(a)(2)
Section 7(a)(2) of the ESA states, ``[e]ach Federal agency shall .
. . insure that any action authorized, funded, or carried out, by such
agency . . . is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction
or adverse modification of [critical] habitat.'' The Service determines
through consultation under section 7(a)(2) whether or not the proposed
action is likely to jeopardize the continued existence of listed
species or destroy or adversely modify critical habitat. The Service
then issues a biological opinion stating our conclusion and, in the
case of a finding of no jeopardy (or jeopardy accompanied by reasonable
and prudent alternatives that can be taken by the Federal agency to
avoid jeopardy), formulates an incidental take statement, if such take
is reasonably certain to occur, that identifies the anticipated amount
or extent of incidental take of listed species and specifies reasonable
and prudent measures necessary or appropriate to minimize such impacts
under section 7(b)(4) of the ESA. If the proposed action is likely to
adversely affect critical habitat, the Service's biological opinion
also analyzes whether adverse modification is likely to occur and
specifies reasonable and prudent alternatives to avoid adverse
modification, as necessary and if available. If the listed species is a
marine mammal, incidental taking is authorized pursuant to section
101(a)(5) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et
seq.) prior to issuance of an incidental take statement under the ESA.
Mitigation Goal: The Service should work with Federal agencies to
assist them in proposing actions that are not likely to jeopardize the
continued existence of any listed species or result in the destruction
or adverse modification of any designated critical habitat, as required
under section 7(a)(2) of the ESA. While not required under section
7(a)(2), the Service may also encourage Federal agencies and applicants
(consistent with Federal action agency authorities) to include
compensation as part of their proposed actions to offset any
anticipated impacts to these resources that are not avoided to achieve
a ``net gain'' or, at a minimum, ``no net loss'' in the conservation of
listed species.
Guidance: The Service should coordinate with Federal agencies and
encourage them to use their authorities under appropriate statutes
(e.g., Federal Land Policy and Management Act) to avoid, minimize, and
offset adverse impacts to listed species and designated critical
habitat using the full mitigation sequence. Compensation is a component
of the mitigation sequence that can be applied to offset adverse
effects of actions on listed species and critical habitat. Furthermore,
the Service can work with Federal agencies to establish compensatory
mitigation programs such as conservation banking and in-lieu fee
programs that incentivize offsetting the effects of their actions
through the appropriate use of compensation while expediting regulatory
processes for the Federal agencies and applicants. Due to economies of
scale, such mitigation programs are particularly effective at providing
more effective and cost-efficient compensation opportunities for
offsetting the effects of multiple actions that individually have small
impacts.
4.1.2.1. Proposed Actions and Project Descriptions
To better implement section 7(a)(2) of the ESA and prevent species
declines, the Service will work with Federal agencies and applicants to
identify conservation measures, using the full mitigation sequence,
that can be included as part of proposed actions for unavoidable
impacts to listed species and critical habitat to achieve, at a
minimum, ``no net loss'' in the species' conservation. The mitigation
sequence should be observed (i.e., avoid first, then minimize, then
compensate), except where circumstances may warrant a departure from
this preferred sequence. For example, it may be preferable to
compensate for the loss of an occupied site that will be difficult to
maintain based on projected future land use (e.g., the site is likely
to be isolated from the population in the future) or climate change
impacts. The Service will consider conservation measures, including
compensatory mitigation, as appropriate, proposed by the action agency
or applicant as part of the proposed action when developing a
biological opinion addressing the effects of the proposed action on
listed species and critical habitat. This consideration of beneficial
actions (i.e., compensatory mitigation) is consistent with our
implementing regulations at 50 CFR 402.14(g)(8). Federal agencies
should coordinate early with the Service on the
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appropriateness of such beneficial actions as compensation for
anticipated future actions.
4.1.2.2. Jeopardy or Adverse Modification Determinations and RPAs
When the Service issues a biological opinion with a finding of
jeopardy or adverse modification of critical habitat, we include
reasonable and prudent alternatives (RPAs) when possible. RPAs may
include any and all forms of mitigation, including compensatory
mitigation, that can be applied to avoid proposed actions from
jeopardizing the existence of listed species or destroying or adversely
modifying critical habitat, provided they are consistent with the
regulatory definition of RPAs at 50 CFR 402.02.
4.1.2.3. No Jeopardy and No Adverse Modification Determinations and
RPMs
When the Service issues a biological opinion with a finding of no
jeopardy, we provide the Federal agency and applicant (if any) with an
incidental take statement, if take is reasonably certain to occur, in
accordance with section 7(b)(4) of the ESA. The incidental take
statement specifies the amount or extent of anticipated take, the
impact of such take on the species, and any reasonable and prudent
measures (RPMs) and implementing terms and conditions determined by the
Service to be necessary or appropriate to minimize the impact of the
take.
RPMs can include mitigation, in appropriate circumstances, if such
a measure minimizes the effect of the incidental take on the species,
and as long as the measure is consistent with the interagency
consultation regulations at 50 CFR 402.14. RPMs should also be
commensurate with and proportional to the impacts associated with the
action. The Service should provide an explanation of why the measures
are necessary or appropriate. If the proposed action includes
conservation measures sufficient to fully compensate for incidental
take, it may not be necessary to include additional minimization
measures (beyond monitoring) through RPMs.
4.1.3. Section 7(a)(4)
Section 7(a)(4) of the ESA states, ``[e]ach Federal agency shall
confer with [the Service] on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
. . . or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species.'' The conference is
designed to assist the Federal agency and any applicant to identify and
resolve potential conflicts at an early stage in the planning process.
Mitigation Goal: The Service should work with Federal agencies to
assist them in proposing actions that are not likely to jeopardize the
continued existence of any species proposed for listing or result in
the destruction or adverse modification of any proposed critical
habitat, in accordance with section 7(a)(4) of the ESA. The Service
should also encourage Federal agencies and applicants to include
compensation as part of their proposed actions to offset any
anticipated impacts to resources that are not avoided to achieve a net
gain or, at a minimum, no net loss in their conservation.
Guidance: The Service should coordinate with Federal agencies and
encourage them to use their authorities to avoid and minimize adverse
impacts to proposed and at-risk species and proposed critical habitat
using the full mitigation sequence. The Service may recommend
compensatory mitigation for adverse effects to proposed or at-risk
species during informal conference or in a conference report or
conference opinion, or the Federal action agency or applicant may
propose compensatory mitigation as part of the action. If a conference
opinion or report determines that a proposed action is likely to
jeopardize the continued existence of a proposed species or adversely
modify or destroy proposed critical habitat, the Service will include
RPAs, if any are available, that may include compensatory mitigation.
If the species is subsequently listed or critical habitat is designated
prior to completion of the action, the Service will give appropriate
consideration to compensatory mitigation when confirming the conference
opinion as a biological opinion or if formal consultation is necessary.
This consideration of beneficial actions is consistent with our
implementing regulations at 50 CFR 402.14(g)(8).
4.2. Section 10--Conservation Plans and Agreements
4.2.1. Safe Harbor and Candidate Conservation Agreements
Under a candidate conservation agreement with assurances (CCAA),
private and other non-Federal property owners may voluntarily undertake
conservation management activities on their properties to address
threats to unlisted species and to enhance, restore, or maintain
habitat benefiting species that are candidates or proposed for listing
under the ESA or other at-risk species in exchange for assurances that
no further action on their part is required should the species become
listed during the term of the CCAA. Under a safe harbor agreement
(SHA), private and other non-Federal property owners may voluntarily
undertake management activities on their property to enhance, restore,
or maintain habitat benefiting species listed under the ESA in exchange
for assurances that there will not be any increased property use
restrictions as a result of their efforts that either attract listed
species to their property or that increase the numbers or distribution
of listed species already on their property during the term of the
agreement. Both types of agreements are designed to encourage
conservation of species on non-Federal land.
Mitigation Goal: Transitioning CCAAs and SHAs into long-term/
permanent conservation that can serve as compensatory mitigation when
appropriate and desired by landowners. Such transitions provide greater
assurance that the species conservation efforts begun under the CCAA or
SHA will persist on the landscape beyond the term of the original
agreement.
Guidance: CCAAs or SHAs are not intended to be mitigation programs
and do not require site protection and financial assurances that meet
the compensatory mitigation standards set forth in this policy,
however, the conservation achieved through implementation of a CCAA or
SHA may be `rolled over' for use as compensatory mitigation if: (1) The
CCAA or SHA permit has expired or is surrendered; (2) the landowner is
in compliance with the terms and conditions of the CCAA or SHA at the
time of transition; (3) any commitments for conservation for which
financial compensation from public sources was received has been
fulfilled and if not fulfilled is prorated and deducted from the
mitigation credit assigned to the property; and (4) all other
requirements for providing compensatory mitigation are met. If the
Service determines the CCAA or SHA would provide greater conservation
to the species as compensatory mitigation, then the Service should
inform the landowner of this assessment and provide the landowner with
the opportunity to transition their property from a CCAA or SHA site to
a mitigation site.
Landowners enrolled in CCAAs while the species remains unlisted can
provide compensatory mitigation under a State or other non-Service
mitigation program if the actions related to the mitigation are
additional to those taken to satisfy the CCAA requirement. Should the
species become listed before the CCAA expires, the landowner has the
option to roll over the existing
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mitigation agreement to a Service-approved mitigation instrument that
meets the standards established in this policy.
4.2.2. Habitat Conservation Plans
Section 10(a)(1)(B) of the ESA allows the Service to issue an
incidental take permit for ``any taking otherwise prohibited by section
9(a)(1)(B) [of the ESA] if such taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity.'' If,
under section 10(a)(2)(B) of the ESA, the Service finds the issuance
criteria are met by the applicant, including that the applicant will,
``to the maximum extent practicable, minimize and mitigate the impacts
of such taking,'' the Service will issue a permit. Plant species and
unlisted animal species may also be covered in the habitat conservation
plan (HCP), provided the applicant meets requirements for their
coverage described in the implementing regulations. The Service
incorporates these measures as terms and conditions of the permit.
Regulations governing incidental take permits for endangered and
threatened wildlife species are found at 50 CFR 17.22 and 17.32. The
Service is required to conduct a section 7(a)(2) consultation on
issuance of an incidental take permit.
Mitigation Goal: Consistent with the purposes and polices of the
ESA, the Service should work with applicants to assist them in
developing HCPs that achieve a ``net gain'' or, at a minimum, ``no net
loss'' in the conservation of covered species and critical habitat.
Though the statute does not require this of HCP applicants, applicants
often will request additional measures for greater future assurances.
This is generally achievable through programmatic approaches, which
provide opportunities for the use of landscape-scale compensatory
mitigation programs to offset impacts of actions.
Guidance: Compensatory mitigation should be concurrent with or in
advance of impacts, whenever possible. Programmatic approaches are
recommended when they will produce regulatory efficiency and improved
conservation outcomes for the covered species. These HCPs operate on a
landscape scale and often use conservation banks, in-lieu fee programs,
or other compensatory mitigation opportunities established by
mitigation sponsors and approved by the Service. These landscape-scale
programmatic approaches can achieve a net gain in conservation for the
covered species as a result of economies of scale. See the revised HCP
Handbook for the various options available to address compensatory
mitigation for HCPs.
4.3. Other Sections of the ESA Where Compensatory Mitigation Can Play a
Role
Section 4(d) of the ESA authorizes the Service to issue protective
regulations that are necessary and advisable to provide for the
conservation of threatened species. The Service used this authority to
extend the prohibition of take (section 9 of the ESA) to all threatened
species by regulation in 1978, through promulgation of a ``blanket 4(d)
rule'' (50 CFR 17.31). This blanket 4(d) rule can be modified by a
species-specific 4(d) rule (e.g., Special Rule Concerning Take of the
Threatened Coastal California Gnatcatcher (58 FR 65088, December 10,
1993)). Depending on the threats, the inclusion of compensatory
mitigation in a species-specific 4(d) rule may help offset habitat
loss, and could hasten recovery or preclude the need to reclassify the
species as endangered.
Section 5 of the ESA provides authority for the Service and the
U.S. Department of Agriculture, with respect to the National Forest
System, to establish and implement a program to conserve fish,
wildlife, and plants, including those which are listed as endangered
species or threatened species through:
Use of land acquisition and other authority under the Fish
and Wildlife Act of 1956, as amended (16 U.S.C. 742a-742j, not
including 742d-1); the Fish and Wildlife Coordination Act, as amended
(16 U.S.C. 661 et seq.); and the Migratory Bird Conservation Act (16
U.S.C. 715-715d, 715e, 715f-715r), as appropriate; and
Acquisition by purchase, donation, or otherwise, of lands,
waters, or interests therein.
Establishment of compensatory mitigation programs that conserve
listed or at-risk species on lands adjacent to National Forests could
be used to offset losses to those species and their habitats by actions
authorized by the Service and also help buffer National Forests from
incompatible neighboring land uses.
5. Compensatory Mitigation Standards
The mitigation principles, as described in the Service's Mitigation
Policy (81 FR 83440, November 21, 2016), are goals the Service intends
to achieve, in part through recommending or requiring, as appropriate,
under the ESA and other applicable authorities, the inclusion of
compensatory mitigation in proposed actions with adverse impacts to
listed, proposed, or at-risk species, and designated or proposed
critical habitat. The compensatory mitigation standards described in
this section of the policy will implement the mitigation principles, as
outlined in the Mitigation Policy, including using a landscape approach
to inform mitigation and aspiring to meet the goal 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. Compensatory mitigation programs,
projects, and measures that are consistent with the mitigation
principles and adhere to the compensatory mitigation standards set
forth in this section of the policy are expected to achieve the best
conservation outcomes. The compensatory mitigation standards apply to
all compensatory mitigation mechanisms (i.e., permittee-responsible
mitigation, conservation banks, in-lieu fee programs, etc.) and all
forms of compensatory mitigation (i.e., restoration, preservation,
establishment, and enhancement) approved by the Service. Specific
operational details regarding the standards will be in the
implementation guidance to be issued by the Service. The standards are
as follows:
5.1. Siting Sustainable Compensatory Mitigation
Compensatory mitigation will be sited in locations that have been
identified in landscape-scale conservation plans or mitigation
strategies as areas that will meet conservation objectives and provide
the greatest long-term benefit to the listed, proposed, and/or at-risk
species and other resources of primary conservation concern. 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.
5.2. In-Kind for Species
Compensatory mitigation must be in-kind for the listed, proposed,
or at-risk species affected by the proposed action. The same
requirement does not
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necessarily apply to the habitat type affected, as the best
conservation outcome for the species may not be an offset of the same
habitat type or ecological attribute of the habitat impacted by the
action. Many species use different habitat types at different life
stages or for different life-history requirements such as feeding,
breeding, and sheltering. For example, some species are migratory.
Selecting a habitat type different from that impacted by the action or
selecting more than one type of habitat for compensatory mitigation may
best meet the conservation needs of the species.
Offsetting impacts to designated or proposed critical habitat
through the use of compensatory mitigation should target the
maintenance, restoration, or improvement of the recovery support
function of the affected critical habitat as described in the relevant
biological or conference opinion, conservation or mitigation plan,
mitigation instrument, permit, or conference report. Recovery plans, 5-
year reviews, proposed and final critical habitat rules, and the best
available science on species status, threats, and needs should be
relied on to inform the selection of habitat types subject to
compensatory mitigation actions for unavoidable adverse impacts to
species or critical habitat.
The use of compensatory mitigation to minimize the impacts of
incidental take on listed species can be based on habitat or another
surrogate such as a similarly affected species or ecological conditions
under circumstances where it is not practicable to express or monitor
the amount or extent of take in terms of the number of individuals of
the species, in accordance with 50 CFR 402.14(i)(1)(i). A causal link
between the surrogate and take of the species must be explained and
must be scientifically defensible. For example, occupied habitat of a
listed species has been used as a surrogate to express the amount or
extent of take of the vernal pool fairy shrimp (Branchinecta lynchi)
because quantification of take in terms of individuals is not
practicable, but the surface area of occupied vernal pool habitat is
easily measured and monitored.
5.3. Reliable and Consistent Metrics
Metrics that measure ecological functions and/or services at
compensatory mitigation sites and impact sites must be science-based,
quantifiable, consistent, repeatable, and related to the conservation
goals for the species. These metrics may be species- or habitat-based.
Metrics used to calculate credits should be the same as those used to
calculate debits for the same species or habitat type. If they are not
the same, the relationship (conversion) between credits and debits must
be transparent and scientifically defensible. Metrics must account for
duration of the impact, temporal loss to the species, management of
risk associated with compensatory mitigation, and other such measures.
This does not mean that metrics developed to measure losses and gains
on the landscape must be precise, as this is rarely possible in
biological systems, but uncertainty should be noted where it exists and
metrics must be based on the best scientific data available to gauge
the adequacy of the compensatory mitigation. Modifying existing metrics
on which approved conservation banks or other compensatory mitigation
programs are based and still in use warrants careful consideration and
must be based on best available science.
Scientifically defensible metrics also are needed to measure
biological and ecological performance criteria used to monitor the
outcome of compensatory mitigation. It may be necessary to adjust
metrics over time through monitoring and adaptive management processes
in order to respond to changing conditions and ensure they remain
effective at assessing the conservation objectives of the compensatory
mitigation program. However, modifying metrics used to monitor
performance should not be a substitute for lack of compliance or
failure to implement adaptive management.
5.4. Judicious Use of Additionality
Compensatory mitigation must provide benefits beyond those that
would otherwise have occurred through routine or required practices or
actions, or obligations required through legal authorities or
contractual agreements. A compensatory mitigation measure is
``additional'' when the benefits of the 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 (600 DM
6.4G). The additional benefits may result from restoration or
enhancement of habitat; preservation of existing habitat that lacks
adequate protection; management actions that protect, maintain, or
create habitat (e.g., regularly scheduled prescribed burns or purchase
of rights in a split estate); or other activities (e.g., an action that
reduces threats from disease or predation, or captive breeding and
reintroduction of individuals or populations). Baseline conditions for
the habitat relevant to the species must be assessed prior to
implementing the compensatory mitigation project for comparison to
conditions after completion of the compensatory mitigation project in
order to quantify and verify the additional benefits derived from the
mitigation project.
Demonstrating additionality on lands already designated for
conservation purposes can be challenging, particularly when the lands
under consideration are public lands. In general, credit can only be
authorized for compensatory mitigation on public lands if additionality
can be clearly demonstrated and is legally attainable. See section 6.2.
Eligible Lands for guidance on using public lands for compensatory
mitigation.
5.5. Timing and Duration
Compensatory mitigation projects must achieve conservation
objectives within a reasonable timeframe and for at least the duration
of the impacts. Ideally, compensatory mitigation should be implemented
in advance of the action that adversely impacts the species or critical
habitat. When this is not possible or practicable, temporal losses to
the affected species must be compensated through some means (e.g.,
increased mitigation ratio that reflects the degree of temporal loss).
Temporal loss may include indirect effects of the action on the species
that occur beyond the time period of any direct effects of the action
(e.g., removal of habitat during a season when individuals of a
migratory species are absent). Temporal loss to the species as a result
of both direct and indirect adverse effects must be addressed when
determining appropriate compensatory mitigation. Losses of habitat that
require many years to restore may best be offset by a combination of
restored habitat, preservation of existing high-quality habitat, and
improved management of existing habitat. The amount of temporal loss,
the form of compensatory mitigation (i.e., establishment, enhancement,
restoration, preservation, or some combination of these forms), and the
time anticipated to establish the compensatory mitigation on the
landscape should be used to determine the amount of compensatory
mitigation needed to meet the mitigation goal for the species, critical
habitat, and/or other resources of concern.
5.6. Ensure Durability
Compensatory mitigation must be secured by adequate legal, real
estate, and financial protections that ensure the success of the
mitigation. Most compensatory mitigation projects are
[[Page 95340]]
permanent, and the viability of the assurances to achieve long-term
stewardship of a mitigation site must be carefully planned and
implemented to ensure durability. A compensatory mitigation measure is
``durable'' when the effectiveness of the measure is sustained for the
duration of the associated impacts (including direct and indirect
impacts) of the authorized action (600 DM 6.4H).
5.7. Effective Conservation Outcomes and Accountability
The Service has authority to conduct direct oversight of all
compensatory mitigation programs and projects for which we have
exempted or permitted incidental take under the ESA. A standard
condition of HCP incidental take permits provides for such oversight.
Incidental take exemptions provided by statute to Federal agencies and
applicants through the ESA section 7 process require that mandatory
terms and conditions included with the take statement must be
implemented by the Federal agency or its applicant to activate the
exemption in 7(o)(2) of the Act. Should a mitigation project fail to
meet its performance criteria and therefore fail to provide the
expected conservation for the species, the responsible party must
provide equivalent compensation through other means.
5.8. Encourage Collaboration
Successful landscape-scale compensatory mitigation depends on the
engagement of affected communities and stakeholders. Governments,
communities, organizations, and individuals support what they help to
develop. The Service will provide opportunities for and encourage
appropriate stakeholder participation in development of landscape-scale
compensatory mitigation strategies that affect listed, proposed, and
at-risk species, and proposed and designated critical habitat through
appropriate public processes such as those used for programmatic
habitat conservation plans (HCPs). Programmatic approaches to
compensatory mitigation programs for at-risk species are also
encouraged, particularly when led by State agencies, and the Service
will make every effort to participate in the planning, establishment,
and operation of such programs as described in our draft Policy
Regarding Voluntary Prelisting Conservation Actions (79 FR 42525, July
22, 2014). The Service's regional and field offices will determine or
assist in determining, as appropriate, the level and methods of public
participation using transparent processes.
5.9. Maintain Transparency and Predictability
Consistent implementation of ESA programs that permit or authorize
incidental take of listed species will provide regulatory
predictability for everyone. The Service will share appropriate
information on the availability of compensatory mitigation programs and
projects with the public through online media or other appropriate
means. Information regarding conservation banks is available on the
Regulatory In-lieu fee and Bank Information Tracking System (RIBITS)
(https://ribits.usace.army.mil). The Service anticipates working with
the USACE to update RIBITS so that it may be used for our in-lieu fee
programs. Similar information for habitat credit exchanges and other
third-party sponsored mitigation projects, or when it is not otherwise
possible to use RIBITS, must be made publicly accessible.
6. General Considerations
Specific operational details, in addition to the information
provided below in this section, will be in implementation guidance
issued by the Service.
6.1. Preferences
The appropriate form of compensatory mitigation (i.e.,
preservation, restoration, enhancement, establishment, or a combination
of some or all of these forms) must be based on the species' needs and
the nature of the impacts adversely affecting the species. The Service
has the following general preferences related to compensatory
mitigation.
6.1.1. Preference for Strategically Sited Compensatory Mitigation
Preference shall be given to compensatory mitigation projects sited
within the boundaries of priority conservation areas identified in
existing landscape-scale conservation plans as described in the
Service's Mitigation Policy (81 FR 83440, November 21, 2016). Priority
conservation areas for listed species may be identified in documents
such as species status assessments, recovery plans, and/or 5-year
reviews.
6.1.2. Preference for Compensatory Mitigation in Advance of Impacts
After following the principles and standards outlined in this
policy and all other considerations being equal, preference will be
given to compensatory mitigation projects implemented in advance of
impacts to the species. Mitigation implemented in advance of impacts
reduces risk and uncertainty. Demonstrating that mitigation is
successfully implemented in advance of impacts provides ecological and
regulatory certainty that is rarely matched by a proposal of mitigation
to be accomplished concurrent with, or subsequent to, the impacts of
the actions even when that proposal is supplemented with higher
mitigation ratios. While conservation banking is by definition
mitigation in advance of impacts, other third-party mitigation
arrangements and permittee-responsible mitigation may also satisfy this
preference by implementing compensatory mitigation in advance of
impacts. In-lieu fee programs can also satisfy this preference through
a ``jump start'' that achieves and maintains a supply of credits that
offer mitigation in advance of impacts.
6.1.3. Preference for Consolidated Compensatory Mitigation
Mitigation mechanisms that consolidate compensatory mitigation on
the landscape, such as conservation banks and in-lieu fee programs, are
generally preferred to small, disjunct compensatory mitigation sites
spread across the landscape. Consolidated mitigation sites generally
have several advantages over multiple, small, isolated mitigation
sites. These advantages include:
Avoidance of a piecemeal approach to conservation efforts
that often results in small, non-sustainable parcels of habitat
scattered throughout the landscape;
Sites that are usually a component of a landscape-level
strategy for conservation of high-value resources;
Cost effective compensatory mitigation options for small
projects, allowing for effective offsetting of the cumulative adverse
effects that result from numerous, similar, small actions;
An increase in public-private partnerships that plan in
advance and a landscape-scale approach to mitigation to provide
communities with opportunities to conserve highly valued natural
resources while still allowing for community development and growth;
Greater capacity for bringing together financial resources
and scientific expertise not practicable for small conservation
actions;
Economies of scale that provide greater resources for
design and implementation of compensatory mitigation sites and a
decreased unit cost for mitigation;
Improved administrative and ecological compliance through
the use of third-party oversight;
[[Page 95341]]
Greater regulatory and financial predictability for
project proponents, greatly reducing the uncertainty that often causes
project proponents to view compensatory mitigation as a burden; and
Expedited regulatory compliance processes, particularly
for small projects, saving all parties time and money.
6.2. Eligible Lands
6.2.1. Lands Eligible for Use as Compensatory Mitigation
Compensatory mitigation sites may be established by willing parties
on private, public, or tribal lands that provide the maximum
conservation benefit for the listed, proposed, and at-risk species and
other affected resources. Maintaining the same classification of land
ownership between the impact area and mitigation site may be important
in preventing a long-term net loss in conservation, in particular a
reduction in the range of the species. Because most private lands are
not permanently protected for conservation and are generally the most
vulnerable to development actions, the use of private lands for
mitigating impacts to species occurring on any type of land ownership
is usually acceptable as long as durability can be ensured. Locating
compensatory mitigation on public lands for impacts to species on
private lands is also possible, and in some circumstances may best
achieve the conservation objectives for species, but should be
carefully considered--see section 6.2.2. Use of Public Land to Mitigate
Impacts on Private Land for additional guidance.
Good candidates for compensatory mitigation sites are unprotected
lands that are high value for conservation and that are acceptable to
the Service. Designations of high conservation value may include lands
with existing high-value habitat or habitat that when restored,
enhanced, established, or properly managed will provide high value to
the species. In addition to these general considerations, lands that
may be good candidates for compensatory mitigation sites include:
Lands previously secured through easements or other means
but that lack the full complement of protections necessary to conserve
the species (e.g., buffer lands for a military installation that do not
include management, or private lands with existing conservation
easements for which landowners have not received financial compensation
from public sources or regulatory assurances from the Service.);
Lands adjacent to undeveloped, protected public lands such
as National Wildlife Refuges or State Wildlife Management Areas;
Private lands enrolled in programs that provide financial
compensation from public sources to landowners in exchange for
agreements that protect, restore, or create habitat for federally
listed or at-risk species for a limited period of time, such as the
Service's Partners for Wildlife Program or some Farm Bill programs
(e.g., Environmental Quality Incentives Program) if additional
conservation benefits are provided above and beyond the terms and
conditions of the agreement or if the agreement/easement has expired;
and
Private lands enrolled in programs that provide regulatory
assurances to the landowner such as SHAs or CCAAs that can be
transitioned into compensatory mitigation, after all terms and
conditions of the agreement have been met and the agreement has expired
or the permit is surrendered in exchange for a mitigation instrument
(see section 4.2.1. Safe Harbor and Candidate Conservation Agreements
for additional guidance).
See section 5.1. Siting Sustainable Compensatory Mitigation for
other considerations when selecting a site suitable for compensatory
mitigation.
Lands that generally do not qualify as compensatory mitigation
sites include:
Lands without clear title unless the existing encumbrances
(e.g., liens, rights-of-way) are compatible with the objectives of the
mitigation site or can be legally removed or subordinated;
Split estates (i.e., lands that have separate owners of
various surface and subsurface rights, usually mineral rights), unless
a remedy can be found (see below for guidance on split estates);
Private or public lands already designated for
conservation purposes, unless the proposed compensatory mitigation
project would add additional conservation benefit for the species above
and beyond that attainable under the existing land designation;
Private lands enrolled in government programs that
compensate landowners who permanently protect, restore, or create
habitat for federally listed or at-risk species (e.g., Wetland Reserve
Program easements administered by the United States Department of
Agriculture's Natural Resources Conservation Service);
Inventory and debt restructure properties under the Food
Security Act of 1985 (16 U.S.C. 3801 et seq.); and
Lands protected or restored for conservation purposes
under fee title transfers.
Additional guidance on limitations involving Federal funding and
mitigation, including grants, is provided in the Service's Mitigation
Policy (81 FR 83440, November 21, 2016).
Lands with split estate ownership and laws and policies governing
existing rights (e.g., mining laws) may prevent land protection
instruments (e.g., permanent conservation easements) from providing
sufficient protection from future development of mineral rights,
including oil and gas exploration or development. Many potential high-
value conservation properties throughout the United States are split
estates. The risk of using split estate properties as compensatory
mitigation should be carefully considered. When legal remedies to
restore single ownership are not possible or practicable, other
approaches to managing the risks may be available to bolster durability
on split estates. A mineral deed acquisition, mineral assessment
report, or subsurface use agreement are a few of the options for
managing mineral rights on compensatory mitigation sites that provide
varying levels of protection (Raffini 2012). Service personnel tasked
with assessing the viability of split estates as mitigation sites
should work with the Service's Realty Specialists and the Department of
the Interior Solicitor to assess risks and possible remedies or other
approaches.
6.2.2. Use of Public Land To Mitigate Impacts on Private Land
In general, the Service supports compensatory mitigation on public
lands that are already designated for the conservation of natural
resources to offset impacts to the species on private lands only if
additionality is clearly demonstrated and is legally attainable.
Additionality is a reasonable expectation that the conservation
benefits associated with the compensatory mitigation actions would not
occur in the foreseeable future without those actions. Offsetting
impacts to private lands by locating compensatory mitigation on public
lands already designated for conservation purposes generally risks a
long-term net loss in landscape capacity to sustain species (e.g.,
future reduction in the range of the species) by relying increasingly
on public lands to serve conservation purposes. However, we recognize
under certain circumstances this offset arrangement may provide the
best possible conservation outcome for the species based on best
available science. When this is the case, the Service will consider
mitigation on
[[Page 95342]]
public lands to offset impacts to the species on private lands
appropriate if:
Compensatory mitigation is an appropriate means of
achieving the mitigation planning goal for the species;
Additionality can be clearly demonstrated and quantified,
and is supplemental to conservation the public agency is foreseeably
expected to implement absent the mitigation (only conservation benefits
that provide additionality are counted towards achieving the mitigation
planning goal);
Durability of the compensatory mitigation is ensured (see
section 6.2.3. Ensuring Durability on Public Lands);
It is consistent with and not otherwise prohibited by all
relevant statutes, regulations, and policies; and
Private lands suitable for compensatory mitigation are
unavailable or are available but cannot provide an equivalent or
greater contribution towards offsetting the impacts to meet the
mitigation planning goal for the species.
When the public lands under consideration for use as compensatory
mitigation for impacts on private lands are National Wildlife Refuge
(NWR) System lands, the Service's Final Policy on the NWR System and
Compensatory Mitigation Under the Section 10/404 Program (USFWS 1999)
states that the Regional Director must recommend the mitigation to the
Service Director for approval. Additional considerations may apply to
NWR System lands for habitat losses authorized through the section 10/
404 program (i.e., Rivers and Harbors Act/Clean Water Act).
6.2.3. Ensuring Durability on Public Lands
Ensuring the durability of compensatory mitigation on public lands
presents particular challenges, especially regarding site protection
assurances, long-term management, and funding assurances for long-term
stewardship. Mechanisms available for ensuring durability of land
protection for compensatory mitigation on public lands vary from agency
to agency, are subject to site-specific limitations, and are likely to
be politically and administratively challenging to secure. Some
mechanisms may require a legislative act while other mechanisms can be
achieved administratively at various levels of an agency's
organization.
To ensure the durability of long-term management on public lands,
there should be a high degree of confidence that incompatible uses are
removed or precluded to ensure that uses of the public lands do not
conflict with or compromise the conservation of the species for which
the compensatory mitigation project was established.
6.2.4. Transfer of Private Mitigation Lands to Public Agencies
Private mitigation lands may be transferred to public agencies with
a conservation mission if allowed by applicable laws, regulations, and
policies.
6.2.5. Compensatory Mitigation on Tribal Lands
Tribal lands are generally eligible as compensatory mitigation
sites if they meet the standards and other requirements set forth in
this policy. Ensuring durability, particularly site protection, is
usually a sensitive issue for a tribal nation because a conservation
easement entrusts the land to another entity (Terzi 2012), but
acceptable entities may be available to hold easements. Additional
guidance regarding mitigation and tribes is included in the Service's
Mitigation Policy (81 FR 83440, November 21, 2016).
6.3. Service Areas
A service area is the geographic area assigned to a compensatory
mitigation site within which credits for a specific resource (e.g., a
species) can be utilized. The impacts for which mitigation is sought
must be located within the designated service area for the species,
unless otherwise approved by the Service. If a proposed action is
located within the identified service area of a specific conservation
bank, in-lieu fee program, or other third-party mitigation program or
site, then the proponent of that action may offset unavoidable impacts,
with the Service's approval, through transfer of the appropriate type
and number of credits from that mitigation program or site. Use of the
credits outside of service areas is subject to approval by the Service.
Service areas that apply to all mitigation mechanisms may be designated
by the Service's regional or field offices, usually through issuance of
species-specific mitigation guidance.
The service area is an important component for a potential
mitigation sponsor who will need to evaluate the market for credits
prior to committing to a mitigation project. The mitigation sponsor has
the responsibility to determine if a proposed mitigation project or
program will be financially feasible and if they will move forward with
the action.
6.4. Crediting and Debiting
A credit is a defined unit representing the accrual or attainment
of ecological functions and/or services at a mitigation site. Credits
are often expressed as a measure of surface area (e.g., an acre or
hectare), linear distance of constant width (e.g., stream miles),
number of individuals or mating pairs of a particular species, habitat
function (e.g., habitat suitability index), or other appropriate metric
that can be consistently quantified.
Metrics developed to support credits by measuring an increase in
ecological functions and services at compensatory mitigation sites and
those developed to measure an expected loss or debit in ecological
functions and services at impact sites must be science-based,
quantifiable, consistent, repeatable, and related to the conservation
goals for the species. In general, the method of calculating credits at
a mitigation site should be the same as calculating debits at project
impact sites. If use of a common ``currency'' between credits and
debits is not practicable, the conversion between crediting and
debiting metrics must be transparent.
Credits are available for use as mitigation once they are verified
and released by the Service. Credits are released in proportion to
administrative and ecological milestones. Credits are considered
retired if they are no longer available for use as mitigation,
including credits that have been transferred to fulfill mitigation
obligations. Credits may also be voluntarily retired, without being
used for mitigation, which may help achieve no net loss or net
conservation benefit goals. Credits are not to be traded among
developers or anyone else and cannot be re-sold. Once a credit has been
transferred as mitigation for a particular action, it may not be used
again.
A mitigation site may contain habitat that is suitable for multiple
listed species or other resources in the same spatial area. When this
occurs, it is important to establish how the credits will be stacked or
bundled and if they can be unstacked and transferred separately. See
section 8.3. Credit Stacking and Bundling for guidance.
Compensatory mitigation programs that use credits are voluntary,
and permittees are never required to purchase credits from these
compensatory mitigation sources. Pricing of credits is solely at the
discretion of the mitigation provider.
6.5. Timelines
The Service does not have mandated timelines for review of
conservation banks, in-lieu fee programs, or other compensatory
mitigation projects that are not part of a consultation or permit
decision. However, this does not mean
[[Page 95343]]
that compensatory mitigation programs and projects are not a priority
for the Service. Establishment of programmatic compensatory mitigation
options for project proponents will provide efficiencies, particularly
when developed in coordination with programmatic consultations and HCPs
for large landscapes. These efficiencies include reducing the Service's
workloads associated with ESA sections 7 and 10, expediting incidental
take authorization for project proponents, and achieving better
conservation outcomes for listed and other at-risk species.
6.6. Managing Risk and Uncertainty
Compensatory mitigation can be a valuable conservation tool for
offsetting unavoidable adverse impacts to listed and at-risk species if
the risk can be sufficiently managed. Predictions about the
effectiveness of compensatory mitigation measures have varying degrees
of uncertainty. Compensatory mitigation accounting systems (e.g.,
debiting and crediting methodologies) should consider risk and adjust
metrics and mitigation ratios to account for uncertainty. An exact
accounting of the functions and services lost at the impact sites and
gained at the mitigation sites is rarely possible due to the
variability and uncertainty inherent in biological systems and
ecological processes. To buffer risk and reduce uncertainty, it is
often helpful to design compensatory mitigation programs and projects
to achieve measures beyond no net loss to attain sufficient
conservation benefits for the species. Designing conservation plans
with mitigation that is expected to achieve more than no net loss in
species conservation generally increases regulatory predictability and
can result in shorter project reviews and facilitated permitting.
7. Compensatory Mitigation Mechanisms
Compensatory mitigation mechanisms can be divided broadly into
habitat-based mechanisms and other non-habitat-based mitigation
programs or projects. Whatever mechanism(s) are selected, compensatory
mitigation is expected to provide either equivalent or additional
conservation for the species to that lost as a result of the action.
Specific operational details regarding compensatory mitigation
mechanisms will be in the implementation guidance to be issued by the
Service.
7.1. Habitat-Based Compensatory Mitigation Mechanisms
Compensatory mitigation mechanisms based on habitat acquisition and
protection may consist of restoration of damaged or degraded habitat,
enhancement of existing habitat, establishment of new habitat,
preservation of existing habitat not already protected, or some
combination of these that offsets the impacts of the action and results
in or contributes to sustainable, functioning ecosystems for the
species. Preservation of existing habitat often includes a change in
land management that renders the site suitable for the species or
provides additional ecological function or services for the species.
Preservation includes site protection and is a valid mechanism for
achieving compensatory mitigation that, at a minimum, reduces threats
to the species. Existing habitat that is not protected and managed for
the long term is vulnerable to loss and cannot count toward recovery of
listed species.
The five habitat-based mitigation mechanisms described below and
compared in Table 1 differ by: (1) The party responsible for the
success of the mitigation site (the permittee or a third party); (2)
whether the mitigation site is within or adjacent to the action area
(on-site) or elsewhere (off-site); and (3) whether credits are
generated at the mitigation site for use by more than one action.
Habitat-based compensatory mitigation will be held to equivalent
standards (the standards set forth in this policy) regardless of the
mitigation mechanism(s) proposed. Habitat-based compensatory mitigation
programs developed to credit conservation actions that benefit unlisted
species should meet all compensatory mitigation standards set forth in
this policy if they are intended to be used as compensatory mitigation
for adverse impacts of actions undertaken after listing.
7.1.1. Permittee-Responsible Compensatory Mitigation
Permittee-responsible compensatory mitigation is a conserved and
managed mitigation site that provides ecological functions and services
as part of the conservation measures associated with a permittee's
proposed action. Permittee-responsible mitigation sites are usually
permanent, as most proposed actions with a need for compensatory
mitigation are anticipated to result in permanent impacts to the
species. The permittee retains responsibility for ensuring the required
compensatory mitigation is completed and successful. This includes
long-term management and maintenance when the mitigation is intended to
be permanent. Permittee-responsible compensatory mitigation may be on-
site or off-site, and each permittee-responsible mitigation site is
linked to the specific action that required the mitigation. Permittee-
responsible mitigation approved for a specific action is not
transferable to other actions and cannot be used for other mitigation
needs.
7.1.2. Conservation Bank Program
A conservation bank is a site or suite of sites that is conserved
and managed in perpetuity and provides ecological functions and
services expressed as credits for specified species that are later used
to compensate for adverse impacts occurring elsewhere to the same
species. Bank sponsors may be public or private entities. Ensuring the
required compensatory mitigation measures for a permitted action are
completed and successful is the responsibility of the bank sponsor. The
responsibility for success of the mitigation is transferred to the bank
sponsor through the transfer (usually a purchase by the permittee) of
credits. Conservation banks provide mitigation in advance of impacts.
7.1.3. In-Lieu Fee Program
An in-lieu fee site is a conserved and managed compensatory
mitigation site established as part of an in-lieu fee program that
provides ecological functions and services expressed as credits for
specified species and used to compensate for adverse impacts occurring
elsewhere to the same species. In-lieu fee sites are usually permanent
as most proposed actions with a need for compensatory mitigation are
anticipated to result in permanent impacts to the species. In-lieu fee
programs may be sponsored by a government agency or an environmental,
conservation-based, not-for-profit organization with a mission that is
consistent with species or habitat conservation. The in-lieu fee
sponsor collects fees from permittees that have been approved by the
Service to use the in-lieu fee program, instead of providing permittee-
responsible compensatory mitigation. An in-lieu fee site that meets the
mitigation requirements for the impacts of permittees' actions will be
established when the in-lieu fee program has collected sufficient
funds. All responsibility for ensuring the required compensatory
mitigation measures are completed and successful, including long-term
management and maintenance, is transferred from the permittee to the
in-lieu fee program sponsor through the transfer (usually purchase) of
credits. In-lieu fee programs generally do not provide mitigation in
advance of impacts.
In-lieu fee programs can also be established to fund non-habitat-
based compensatory mitigation measures. See
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section 7.3 Other Compensatory Mitigation Programs or Projects for
guidance on these types of programs.
7.1.4. Habitat Credit Exchange
Habitat credit exchanges are relatively new and warrant additional
care and consideration when being considered as a mitigation mechanism.
A habitat credit exchange is an environmental market that operates as a
clearinghouse in which an exchange administrator, operating as a
mitigation sponsor, manages credit transactions between compensatory
mitigation providers and project permittees. This is in contrast to the
direct transactions between compensatory mitigation providers and
permittees that generally occur through conservation banking and in-
lieu fee programs. Exchanges provide ecological functions and services
expressed as credits that are conserved and managed for specified
species and are used to compensate for adverse impacts occurring
elsewhere to the same species. Exchanges may be designed to provide
credits for permanent compensatory mitigation sites, short-term
compensatory mitigation sites, or both types of sites. Habitat credit
exchanges may operate at a local or larger landscape scale, may consist
of one or more mitigation sites, and may obtain credits from
conservation banks or in-lieu fee programs. Exchange administrators may
be public or private entities. Exchanges developed for federally listed
species will require Service approval as with all other mitigation
mechanisms described in this policy.
Table 1--Comparison of Habitat-Based Compensatory Mitigation Sites Established Under Different Mechanisms
----------------------------------------------------------------------------------------------------------------
Responsibility
Mitigation mechanism Responsible party Credits generated transferable
----------------------------------------------------------------------------------------------------------------
Permittee-responsible Mitigation Permittee.............. No...................... No.
Site.
Conservation Bank................... Bank Sponsor........... Yes..................... Yes.
In-lieu Fee Program Site............ In-lieu Fee Sponsor.... Yes..................... Yes.
Habitat Credit Exchange Site........ Exchange Administrator, Yes..................... Yes.
Mitigation Sponsor, or
other identified
responsible entity.
----------------------------------------------------------------------------------------------------------------
7.2. Short-Term Compensatory Mitigation
The concept of short-term compensatory mitigation has merit if it
serves the conservation goals of the species. Short-term compensatory
mitigation may be appropriate in some situations to offset impacts that
can be completely rectified by repairing, rehabilitating, or restoring
the affected environment within a short and predictable timeframe.
Under this policy, short-term compensatory mitigation includes
rectifying the damage at the impact site and providing short-term
compensation to offset the temporal loss caused by the action to
achieve a conservation outcome that results in, at a minimum, no net
loss to the species.
A short-term impact is defined in this policy as an action that
meets the following criteria: (1) The impact is limited to harassment
or other forms of nonlethal take; (2) the impact can be completely
rectified through natural or active processes, and the site will
function long term within the landscape at the same or greater level
than before the impact; (3) restoration of the impact site can occur
within a short and predictable timeframe based on current science and
the knowledge of the species; and (4) all temporal loss to the species
by the impact can be estimated and compensated. Opportunities for
short-term compensation are likely to be very limited and may not apply
to most species.
Inherent in applying short-term compensatory mitigation is the
recovery of the affected species' populations to pre-disturbance levels
and any additional increase in population levels that was anticipated
to occur if the action had not taken place (i.e., adjusted for temporal
loss). Determining the amount and duration of compensatory mitigation
needed requires substantial knowledge of the biology of the species
(e.g., abundance, distribution, fecundity). Actions that meet the
criteria for short-term impacts are not limited to short-term
compensatory mitigation as a mitigation option. The Service prefers
mitigation mechanisms that protect conservation values in perpetuity.
Permanent compensatory mitigation either at the same or a reduced
mitigation ratio (determined by the Service) is usually an alternative.
Conservation banks or in-lieu fee programs with available credits that
meet the compensatory mitigation needs for actions with short-term
impacts are usually a good alternative to short-term compensatory
mitigation.
7.3. Other Compensatory Mitigation Programs or Projects
Compensatory mitigation is based on the concept of replacing or
providing substitute resources or environments for the impacted
resource (40 CFR 1508.20). However, mechanisms or conservation measures
that do not exactly meet this definition, but that meet the
conservation objectives for the specified species and are expected to
compensate for adverse effects to species or their habitats, may be
suitable as compensatory mitigation. These types of compensatory
mitigation measures are acceptable if they are closely tied to recovery
actions identified in species status assessments, recovery plans, 5-
year reviews, or best available science on the threats and needs of the
species. Compensatory mitigation of this type is often funded through
an in-lieu fee program. Examples of potentially suitable compensatory
measures include, but are not limited to:
a. Transfer and retirement of timber, water, mineral, or other
severed rights to an already existing conservation site, thereby
significantly reducing or eliminating the risk of future development on
the site that would be incompatible with conservation of the species;
b. Restricting human use of waterways or other public spaces
through legal means to allow for increased or exclusive use by the
species;
c. Controlled propagation, population augmentation, and
reintroduction of individuals of the species to offset losses from an
action;
d. Captive rearing and release of individuals of the species to
offset losses from an action;
e. Administering vaccination programs vital to species survival and
recovery;
f. Gating of caves that serve as habitat for the species;
g. Construction of wildlife overpasses or underpasses to protect
migratory passages for the species; and/or
h. Programs that reduce the exposure of the species to contaminants
in the
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environment that are known to cause injury or mortality.
In rare circumstances, research or education that can be linked
directly to the relative threats to the species and provide a
quantifiable benefit to the species may be included as part of a
mitigation package. Although research can assist in identifying
substitute resources, it does not replace impacted resources or
adequately compensate for adverse effects to species or habitat. See
the Service's Mitigation Policy (81 FR 83440, November 21, 2016) for
additional guidance on appropriate uses of research or education as
mitigation.
8. Criteria for Use of Third-Party Mitigation
Specific operational details regarding the use of third-party
mitigation will be in the implementation guidance to be issued by the
Service.
8.1. Project Applicability
Activities regulated under sections 7 or 10 of the ESA may be
eligible to use third-party sponsored mitigation, if the adverse
impacts to the species from the particular project can be offset by
transfer of the appropriate type and number of credits provided by the
third-party sponsored mitigation program. The impacts for which third-
party sponsored mitigation is sought must be located within the service
area for the species provided by the third-party sponsored mitigation
program unless otherwise approved by the Service. In no case may the
same credit(s) be used to compensate for more than one action. However,
the same credit(s) may be used to compensate for a single action that
requires authorization under more than one regulatory authority (e.g.,
a vernal pool restoration credit that provides mitigation for a listed
species under the ESA and wetlands under section 404 of the CWA).
Only credits that have been verified by the Service and released
are considered available. Only available credits can be used to
mitigate actions.
8.2. Transfer of Responsibility
The mitigation sponsor assumes responsibility for success of the
mitigation through the transfer (usually a purchase by the permittee)
of credits or other quantified amount of compensatory mitigation.
The Service's role is regulatory. Credit transfers are subject to
approval by the Service, as to their conservation value and appropriate
application for use related to any authorization or permit issued under
the ESA. Market and legal risks arising from the purchase and use of
mitigation credits are borne solely by the parties to the sale of such
credits.
8.3. Credit Stacking and Bundling
The Service recognizes the inherent efficiencies in leveraging
multiple conservation efforts on the landscape and encourages these
coordinated efforts. However, compensatory mitigation and other
conservation actions that occur on the same mitigation site must be
accounted for separately, and all aspects of the different actions must
be managed and tracked in a transparent manner. Stacking mitigation
credits within a mitigation site (i.e., more than one credit type on
spatially overlapping areas) is allowed, but the stacked credits cannot
be used to provide mitigation for more than one permitted impact action
even if all the resources included in the stacked credit are not needed
for that action. To do so would result in a net loss of resources in
most cases because using a species credit separately from the functions
and services that accompany its habitat, such as carbon sequestration
or pollination services, would result in double counting (i.e.,
``double dipping''). Double counting is selling or using a unit of the
same ecosystem function or service on the ground more than once. This
can occur through an accounting error in which the credit is sold
twice, and it also can occur when stacked credits are unstacked and one
or more functions or services are sold separately. For example, a
credit representing an acre of habitat is sold once as a species
habitat credit for a permitted action and again as a carbon credit for
a different action in a different location. The loss of species habitat
at the first impact site included all functions and services associated
with that habitat including carbon sequestration, so selling that same
unit of compensatory mitigation again for carbon sequestration results
in no carbon offset for the loss of carbon sequestration at the second
impact location. Using a stacked credit separately to reflect its
various values is an ecologically challenging accounting exercise.
Compensatory mitigation projects may be designed to holistically
address requirements under multiple programs and authorities for the
same action and may use bundled credits to accomplish this goal. For
example, a stream credit may satisfy requirements for an U.S. Army
Corps of Engineers section 404 CWA permit and issuance of incidental
take authority under the ESA for a listed mussel species occurring in
that stream, or a county-wide HCP may establish an in-lieu fee program
for which a single fee is collected from project applicants for a
permit which covers multiple mitigation obligations under Federal,
State, and local authorities. In both these examples, the bundled
credit is used as a single commodity (i.e., it is not unbundled or
unstacked) and is only used once.
8.4. Use of Credits for Mitigation Under Authorities Other Than the ESA
Compensatory mitigation projects established for use under one
Service program (e.g., Ecological Services) may also be used to satisfy
the environmental requirements of other Service programs (e.g.,
Migratory Birds or Refuges) or other Federal, State, or local agency
programs consistent with the laws and requirements of each respective
program. However, the same credits may not be used for more than one
authorized or permitted action (i.e., no double counting of mitigation
credits).
9. Compliance and Tracking
A tracking system is essential in ensuring compliance with the
mitigation instruments used to implement compensatory mitigation
programs described in this policy. Tracking systems also facilitate
consistency in the implementation of compensatory mitigation programs
and projects. It is vital that the Service track compliance directly
for permittee-responsible mitigation and, at a minimum, through third
parties responsible for operating compensatory mitigation programs or
projects such as in-lieu fee programs and habitat exchanges.
Transactions (credit withdrawals) at a Service authorized mitigation
program or project that are not related to ESA compliance and are not
approved by the Service must be tracked in the same tracking system.
The Service is not liable for any event or transaction that eludes
detection through the Service's tracking function. Specific operational
details regarding compliance and tracking will be in the implementation
guidance to be issued by the Service.
References Cited
Clement, J.P. et al. 2014. A strategy for improving the mitigation
policies and practices of the Department of the Interior. A report
to the Secretary of the Interior from the Energy and Climate Change
Task Force, Washington, DC. 25 pp.
Fox, J. and A. Nino-Murcia. 2005. Status of Species Conservation
Banking in the United States. Conservation Biology 19:996-1007.
Presidential Memorandum (PM). 2015. ``Mitigating Impacts on Natural
[[Page 95346]]
Resources for Development and Encouraging Related Private
Investment.'' Issued November 3, 2015.
Raffini, E. 2012. Mineral Rights and Banking. National Environmental
Newsletter 34:9-10. Environmental Law Institute, Washington, DC.
Terzi, G. 2012. The Lummi Nation Wetland and Habitat Bank--Restoring
a Piece of History. National Wetlands Newsletter 34:12-13.
Environmental Law Institute, Washington, DC.
U.S. Fish and Wildlife Service. 1999. Final Policy on the National
Wildlife Refuge System and Compensatory Mitigation Under the Section
10/404 Program. September 10, 1999. Federal Register 64:49229-49234.
U.S. Fish and Wildlife Service. 2003. Guidance on the Establishment,
Use, and Operation of Conservation Banks. May 2, 2003. U.S.
Department of the Interior Fish and Wildlife Service. 18 pp.
U.S. Fish and Wildlife Service. 2008. Guidance on Recovery Crediting
for the Conservation of Threatened and Endangered Species. July
2008. U.S. Department of the Interior Fish and Wildlife Service.
U.S. Fish and Wildlife Service. 2013. Guidelines for the
Establishment, Management, and Operations of Golden-cheeked Warbler
and Black-capped Vireo Mitigation Lands. July 2013. U.S. Department
of the Interior Fish and Wildlife Service Southwest Region.
U.S. Fish and Wildlife Service. 2016. U.S. Fish and Wildlife Service
Mitigation Policy. November 21, 2016. U.S. Department of the
Interior Fish and Wildlife Service.
Williams, B.K., R.C. Szaro, and C.D. Shapiro. 2009. Adaptive
Management: The U.S. Department of the Interior Technical Guide.
Adaptive Management Working Group, U.S. Department of the Interior,
Washington, DC.
Appendix A: List of Acronyms and Abbreviations Used in This Policy
CCAA--Candidate conservation agreement with assurances
CEQ--Council on Environmental Quality
CFR--Code of Federal Regulations
CWA--Clean Water Act
EPA--Environmental Protection Agency
ESA--Endangered Species Act
FWCA--Fish and Wildlife Coordination Act
HCP--Habitat conservation plan
MMPA--Marine Mammal Protection Act
NEPA--National Environmental Policy Act
NWR--National Wildlife Refuge
RPA--Reasonable and prudent alternative
RPM--Reasonable and prudent measure
RIBITS--Regulatory In-lieu fee and Bank Information Tracking System
SHA--Safe harbor agreement
USACE--United States Army Corps of Engineers
USFWS--United States Fish and Wildlife Service
Appendix B: Glossary of Terms Related to Compensatory Mitigation
Definitions in this section apply to the implementation of the
U.S. Fish and Wildlife Service (Service) Endangered Species Act
Compensatory Mitigation Policy and were developed to provide clarity
and consistency. Some definitions are defined in Service authorities
such as the Endangered Species Act or the National Environmental
Policy Act, or in regulations or policies existing at the time this
policy was issued. Other definitions have been developed based on
compensatory mitigation practices. Definitions in the glossary do
not substitute for statutory or regulatory definitions in the
exercise of those authorities.
Action--an activity or program implemented, authorized, or
funded, in whole or in part, 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 (81 FR 83440; November 21, 2016).
Action area--all areas to be affected directly or indirectly by
the Federal action and not merely the immediate area involved in the
action (50 CFR 402.02).
Adaptive management--a systematic approach for improving
resource management by learning from management outcomes. An
adaptive approach involves exploring alternative ways to meet
management objectives, predicting the outcomes of alternatives based
on the current state of knowledge, implementing one or more of these
alternatives, monitoring to learn about the impacts of management
actions, and then using the results to update knowledge and adjust
management actions. Adaptive management focuses on learning and
adapting, through partnerships of managers, scientists, and other
stakeholders who learn together how to create and maintain
sustainable resource systems (Williams et al. 2009). As applied to
compensatory mitigation, it is a management strategy that
anticipates likely challenges associated with compensatory
mitigation projects and provides for the implementation of
activities to address those challenges, as well as unforeseen
changes to those projects. It requires consideration of the risk,
uncertainty, and dynamic nature of compensatory mitigation projects
and guides modification of those projects to achieve stated
biological goals. It includes the selection of appropriate measures
that will ensure that the resource functions and services are
provided and involves analysis of monitoring results to identify
potential problems of a compensatory mitigation project and the
identification and implementation of measures to rectify those
problems (modified from 33 CFR 332.2).
Additionality--conservation benefits of a compensatory
mitigation measure that 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 (600 DM 6.4G).
Additive impacts, additive effects--the combined effects of past
actions on a species, other resource, or community; impacts of an
action may be relatively insignificant on their own, but when
considered with the impacts from other actions as they accumulate
over time collectively lead to significant overall loss or
degradation of resources. See also ``cumulative effects.''
Applicant--any person who requires formal approval or
authorization from a Federal agency as a prerequisite to conducting
an action (50 CFR 402.02); ``person'' means an individual,
corporation, partnership, trust, association, or any other private
entity; or any officer, employee, agent, department, or
instrumentality of the Federal Government, of any State,
municipality, or political subdivision of a State, or of any foreign
government; any State, municipality, or political subdivision of a
State; or any other entity subject to the jurisdiction of the United
States (16 U.S.C. 1532(13)).
At-risk species--candidate species and other unlisted species
that are declining and are at risk of becoming a candidate for
listing under the Endangered Species Act. This may include, but is
not limited to, State listed species, species identified by States
as species of greatest conservation need, or species with State
heritage ranks of G1 or G2.
Avoidance--avoiding the impact altogether by not taking a
certain action or parts of an action (40 CFR 1508.20).
Bank Sponsor--any public or private entity responsible for
establishing and, in most circumstances, operating a conservation
bank. Bank sponsors are most often private individuals, companies,
or Limited Liability Corporations, but they may also be
nongovernmental organizations, Tribes, or government agencies. See
also ``mitigation sponsor.''
Baseline--the pre-existing condition of a defined area of
habitat or a species population that can be quantified by an
appropriate metric to determine level of functions and/or services
and re-measured at a later time to determine if the same area of
habitat or species population has increased, decreased, or
maintained the same level of functions and/or services.
Candidate conservation agreement with assurances (CCAA)--a
formal agreement between the Service or the National Marine
Fisheries Service and one or more non-Federal parties who
voluntarily agree to manage their lands or waters to remove threats
to candidate or proposed species and in exchange receive assurances
that their conservation efforts will not result in future regulatory
obligations in excess of those they agreed to at the time they
entered into the agreement. The management activities included in
the agreement must significantly contribute to elimination of the
need to list the target species when considered in conjunction with
other landowners conducting similar management activities within the
range of the species (USFWS CCAA Policy).
Candidate species (candidate)--any species being considered by
the Secretary for listing as an endangered or threatened species,
but not yet the subject of a proposed rule (50 CFR 424.02); a
species for which the Service or the National Marine Fisheries
Service has on file sufficient information on biological
vulnerability and threats to support a proposal to list as
endangered or
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threatened under the Endangered Species Act.
Compensatory mitigation (compensation)--compensation 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
(600 DM 6.4C).
Compensatory mitigation project--compensatory mitigation
implemented by the action agency, a permittee, or a mitigation
sponsor. Compensatory mitigation projects include permittee-
responsible mitigation, conservation banks, in lieu fee programs and
sites, habitat credit exchanges, and other third-party compensatory
mitigation projects.
Conservation, conserve, conserving--to use and the use of all
methods and procedures which are necessary to bring any endangered
or threatened species to the point at which the measures provided
pursuant to the Endangered Species Act are no longer necessary (16
U.S.C. 1532(3)).
Conservation bank--a site, or suite of sites, that is conserved
and managed in perpetuity and provides ecological functions and
services expressed as credits for specified species that are later
used to compensate for impacts occurring elsewhere to the same
species.
Conservation easement--a recorded legal document established to
conserve biological resources for a specified duration, usually in
perpetuity, on a identified conservation property and which
restricts certain activities and requires certain habitat management
obligations for the conservation property.
Conservation measures (conservation actions)--measures pledged
in the project description that the Federal agency or applicant will
implement to minimize, rectify, reduce, and/or compensate for the
adverse impacts of the development project on the species.
Conservation measures designed to compensate for unavoidable impacts
may include the restoration, enhancement, establishment, and/or
preservation of species habitat or other measures conducted for the
purpose of offsetting adverse impacts to the species. Upon issuance
of a permit, license or other such authorization associated with the
proposed project, implementation of that project requires
implementation of the conservation measures as well as any other
terms and conditions of the permit.
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 the species (81 FR 83440;
November 21, 2016).
Conservation plan (species conservation plan)--a plan developed
by Federal, State, and/or local government agencies, Tribes, or
appropriate nongovernmental organizations, in consultation with
relevant stakeholders, for the specific goal of conserving one or
more listed or at-risk species. A conservation plan is developed
using a landscape-scale approach and addresses the status of, needs
of, and threats to the species, and usually includes recommended
conservation measures for the conservation/recovery of the species.
Examples of species conservation plans include species conservation
frameworks, rangewide conservation plans, and conservation plans
developed as part of a large landscape habitat conservation plan.
Covered species--species specifically included in a conservation
bank, habitat conservation plan, safe harbor agreement, candidate
conservation agreement with assurances, rangewide conservation plan,
or other such conservation plan for which a commitment is made to
achieve specific conservation measures for the species.
Credit (species credit, habitat credit)--a defined unit
representing the accrual or attainment of ecological functions and/
or services for a species at a mitigation site or within a
mitigation program.
Credit bundling--allowing a single unit of a mitigation site to
provide compensation for two or more spatially overlapping ecosystem
functions or services that are grouped together into a single credit
type and used as a single commodity to compensate for a single
permitted action. A bundled credit may be used to compensate for all
or a subset of the functions or services included in the credit type
but may only be used once, even if all functions and services
represented in the credit type were not required for the permitted
action. See also ``credit stacking.''
Credit reserve account--credits set aside in reserve to offset
force majeure or other unforeseen events as agreed to by the
Service, allowing a mitigation program to continue uninterrupted.
Credit stacking--allowing a single unit of a mitigation site to
provide two or more credit types representing spatially overlapping
ecosystem functions or services which can be unstacked and used as
separate commodities to compensate for different permitted actions.
Credit stacking can result in double counting (i.e., a net loss of
resources on the landscape) if the same functions or services are
not also accounted for separately at all impact sites. See also
``credit bundling'' and ``double-counting.''
Credit transfer--the use, sale, or conveyance of credits by a
bank sponsor or mitigation provider to a permittee or other entity
for the purposes of offsetting impacts of an action.
Critical habitat--specific areas within the geographical area
occupied by the species at the time it is listed as endangered or
threatened under the Endangered Species Act, on which are found
those physical or biological features essential to the conservation
of the species and which may require special management
considerations or protection; and specific areas outside the
geographical area occupied by the species at the time it is listed,
which are determined by the Secretary of the Department of the
Interior to be areas essential for the conservation of the species
(16 U.S.C. 1532(5)(A)).
Cumulative effects--those effects of future State or private
activities, not involving Federal activities, that are reasonably
certain to occur within the action area of the Federal action
subject to consultation under the Endangered Species Act (50 CFR
402.14(g)(3)). Under the National Environmental Policy Act,
cumulative effects are defined as the impact on the environment
which results from the incremental impact of the action when added
to other past, present, and reasonably foreseeable future actions
regardless of what agency (Federal or non-Federal) or person
undertakes such other actions (40 CFR 1508.7).
Debit--a defined unit representing the loss of ecological
functions and/or services for a species at an impact site. Debits
should be expressed using the same metrics used to value credits at
mitigation sites.
Direct effects--those effects to the species or other resource
that are caused by the action and occur at the same time and place
(81 FR 83440; November 21, 2016).
Double-counting (double-dipping)--using a credit, however
defined, representing the same unit of ecosystem function or service
on a mitigation site more than once. This is not allowed.
Durability--the condition or state in which the measurable
environment benefits of the compensatory mitigation project or
measure are sustained, at a minimum, for the duration of the
associated impacts (including direct and indirect impacts) of the
authorized action. To be durable, mitigation measures effectively
compensate for remaining unavoidable impacts that warrant
compensatory mitigation; use long-term administrative and legal
provisions to prevent actions that are incompatible with the
measure; and employ financial instruments to ensure the availability
of sufficient funding for the measure's long-term monitoring, site
protection, and management (600 DM 6.4G).
Effects (effects of the action)--changes in the environmental
conditions caused by an action that are relevant to the species or
other resources (81 FR 83440; November 21, 2016), including the
direct, indirect, and cumulative effects of the action on the
species and other activities that are interrelated to, or
interdependent with, that action as defined at 50 CFR 402.02. See
also ``cumulative effects.''
Endangered species--any species which is in danger of extinction
throughout all or a significant portion of its range (16 U.S.C.
1532(6)).
Endowment--as used in this policy, funds that are conveyed
solely for the long-term stewardship of a mitigation property and
are permanently restricted to paying the costs of management and
stewardship of that property. The management of endowment funds is
generally governed by State and Federal laws, as applicable.
Endowments do not include funds conveyed for meeting short-term
performance objectives of a mitigation project.
Enhancement--activities conducted in existing habitat of the
species that improve one or more ecological functions or services
for that species, or otherwise provide added
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benefit to the species and do not negatively affect other resources
of concern. Compare with ``restoration.''
Establishment--construction of habitat of a type that did not
previously exist on a mitigation site but which will provide a
benefit to the species and does not negatively affect other
resources of concern. Compare with ``restoration.''
Fee title (fee)--an interest in land that is the most complete
and absolute ownership in land; it is of indefinite duration, freely
transferable, and inheritable.
Functions--the physical, chemical, and biological processes that
occur in ecosystems (33 CFR 332.2); functions are the ecological
processes necessary for meeting species' habitat and lifecycle
needs.
Habitat--an area with spatially identifiable physical, chemical,
and biological attributes that supports one or more life-history
processes for the species (81 FR 83440; November 21, 2016).
Habitat conservation plan (HCP)--a planning document that
describes the anticipated effects of a proposed activity on the
taking of federally listed species, how those impacts will be
minimized and mitigated, and how the plan will be funded (16 U.S.C.
1539). The HCP is required as part of an incidental take permit
application to the Service or the National Marine Fisheries Service
(see ``incidental take'').
Habitat credit exchange (habitat credit exchange program)--a
market-based system that operates as a clearinghouse in which an
exchange administrator, acting as a mitigation sponsor, manages
credit transactions between compensatory mitigation providers and
permittees or others authorized to implement actions that adversely
affect protected species.
Impact(s) (of an action)--adverse effects relative to the
affected resources (81 FR 83440; November 21, 2016). More
specifically under this policy, adverse effects on the species or
its habitat anticipated in a proposed action or resulting from an
authorized or permitted action.
Incidental take--take of any endangered or threatened species
that results from, but is not the purpose of, carrying out an
otherwise lawful activity conducted by a Federal agency or an
applicant (50 CFR 402.02). Incidental take may be authorized for
endangered or threatened species through section 7 or 10, or for
threatened species, through a rule codified under section 4(d) of
the Endangered Species Act. (See also, ``take.'')
Indirect effects--those effects to the species that are caused
by the action at a later time or another place, but are reasonably
certain to occur (50 CFR 402.02).
In-kind--a resource of a similar structural and functional type
to the impacted resource (33 CFR 332.2); when used in reference to a
species, in-kind means the same species.
In-lieu fee program--a program involving the restoration,
establishment, enhancement, and/or preservation of habitat through
funds paid to a governmental or nonprofit natural resources
management entity to satisfy compensatory mitigation requirements
for impacts to specified species or habitat (modified from 33 CFR
332.2).
In-lieu fee program sponsor--any government agency or nonprofit
natural resources management organization responsible for
establishing, and in most circumstances, operating an in-lieu fee
program. See also, ``sponsor.''
In-lieu fee site--a compensatory mitigation site established
under an approved in-lieu fee program.
Landscape--an area encompassing an interacting mosaic of
ecosystems and human systems that is characterized by a set of
common management concerns. The landscape is not defined by the size
of the area, but rather by the interacting elements that are
relevant and meaningful in a management context (600 DM 6D).
Landscape-scale approach--an approach to conservation planning
that applies the mitigation hierarchy for impacts to resources and
their values, services, and functions at the relevant scale, however
narrow or broad, necessary to sustain, or otherwise achieve
established goals for those resources and their values, services,
and functions. A landscape-scale approach should be used when
developing and approving strategies or plans, reviewing projects, or
issuing permits. The approach identifies the needs and baseline
conditions of targeted resources and their values, services and
functions, reasonably foreseeable impacts, cumulative impacts of
past and likely projected disturbance to those resources, and future
disturbance trends. The approach then uses such information to
identify priorities for avoidance, minimization, and compensatory
mitigation measures across that relevant area to provide the maximum
benefit to the impacted resources and their values, services, and
functions, with full consideration of the conditions of
additionality and durability (600 DM 6E).
Listed species--any species or subspecies of fish, wildlife, or
plant which has been determined to be endangered or threatened under
section 4 of the Endangered Species Act (50 CFR 402.02). Listed
species are found at 50 CFR 17.11 and 17.12.
Management plan--the stewardship plan prepared to instruct the
land manager in the operations and biological management for the
compensatory mitigation site to, at a minimum, maintain the
functions and services for specified species and other resources on
the mitigation site. These are generally long-term plans that
include a detailed estimate of the itemized costs for all management
actions required by the plan. These annual costs are used to
estimate the size of the endowment that will be needed to maintain
and monitor the mitigation site for the intended duration.
Mitigation (mitigation hierarchy, mitigation sequence)--as
defined and codified in the Council on Environmental Quality (CEQ)
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
regulations (40 CFR 1508.20), mitigation includes:
Avoid the impact altogether by not taking the action or
parts of the action;
Minimize the impact by limiting the degree or magnitude
of the action and its implementation;
Rectify the impact by repairing, rehabilitating, or
restoring the affected environment;
Reduce or eliminate the impact over time by
preservation and maintenance operations during the life of the
action; and
Compensate for the impact by replacing or providing
substitute resources or environments.
This sequence is often condensed to: Avoidance, minimization,
and compensation.
Mitigation ratio--the relationship between the amount of the
compensatory offset for, and the impacts to, the species, habitat
for the species, or other resource of concern.
Mitigation sponsor (mitigation project sponsor, sponsor,
mitigation provider)--any public or private entity responsible for
establishing, and in most circumstances, operating a compensatory
mitigation program or project such as a conservation bank, in-lieu
fee program, or habitat credit exchange (modified from 33 CFR
332.2).
Off-site--a mitigation area that is located neither on nor
adjacent to the same parcel of land as the impact site (33 CFR
332.2).
On-site--a mitigation site located on or adjacent to the same
parcel of land as the impact site (33 CFR 332.2).
Performance criteria--observable or measurable administrative
and ecological (physical, chemical, or biological) attributes that
are used to determine if a compensatory mitigation project meets the
agreed upon conservation objectives identified in a mitigation
instrument or the conservation measures proposed as part of a
permitted or otherwise authorized action.
Permittee--any person who receives formal approval or
authorization, generally in the form of a permit or license, from a
Federal agency to conduct an action. See also, ``applicant.''
Permittee-responsible mitigation--activities or projects
undertaken by a permittee or an authorized agent or contractor to
provide compensatory mitigation for which the permittee retains full
responsibility. As used in this policy, permittee-responsible
mitigation also includes compensatory mitigation undertaken by
Federal agencies to offset impacts resulting from actions carried
out directly by the Federal agency.
Perpetuity--endless or infinitely long duration or existence;
permanent.
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 (81 FR 83440; November 21, 2016).
Preservation--the protection and management of existing
resources for the species that would not otherwise be protected
through removal of a threat to, or preventing the decline of, the
resources to compensate for the loss of the same species or
resources elsewhere.
Proponent (project proponent)--the agency proposing an action,
and if applicable, any applicant(s) for agency funding or
authorization to implement a proposed action (81 FR 83440; November
21, 2016). For purposes of this policy, any person, organization, or
agency advocating a development proposal that is anticipated to
result in adverse impacts to one or more listed or at-risk species.
See also, ``applicant'' and ``permittee.''
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Resources (resources of concern)--fish, wildlife, plants, and
their habitats for which the Service has authority to recommend or
require the mitigation of impacts resulting from proposed actions
(81 FR 83440; November 21, 2016) .
Restoration--repairing or rehabilitating habitat for the benefit
of the species on a mitigation site with the goal of returning it to
its natural/historic habitat type with the same or similar functions
where they have ceased to exist, or exist in a substantially
degraded state.
Retired credit--a credit that is no longer available for use as
mitigation. Credits that have been sold or otherwise used to fulfill
a mitigation obligation are considered retired. Credits may also be
voluntarily retired or forfeited, without being used for mitigation.
Safe harbor agreement (SHA)--formal agreement between the
Service or National Marine Fisheries Service and one or more non-
Federal property owners in which property owners voluntarily manage
for listed species for an agreed amount of time providing a net
conservation benefit to the species and, in return, receive
assurances from the Service or National Marine Fisheries Service
that no additional future regulatory restrictions will be imposed
(USFWS Safe Harbor Policy). Under the Safe Harbor Policy, ``net
conservation benefit'' is defined as contributing to the recovery of
the listed species covered by the SHA.
Service area--the geographic area within which impacts to the
species or other resources of concern can be mitigated at a specific
compensatory mitigation site.
Species--the term ``species'' includes any species, subspecies
of fish, or wildlife, or plants, and any distinct population segment
of any species of vertebrate fish or wildlife which interbreeds when
mature (16 U.S.C. 1532(16)).
Take--means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture or collect a federally listed species, or to attempt
to engage in any such conduct (16 U.S.C. 1532(19)). ``Take'' applies
only to fish and wildlife, not plants.
Temporal loss--the cumulative loss of functions and/or services
relevant to the species attributed to the time between the loss of
habitat functions and/or services or individuals of the
population(s) caused by the action and the replacement of habitat
functions and/or services or repopulation of the species at the
compensatory mitigation site to the same level had the action not
occurred.
Threatened species--any species which is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range (16 U.S.C. 1532(20)).
Unavoidable impact--an impact for which an appropriate and
practicable alternative to the proposed action that would not cause
the impact is not available (81 FR 83440; November 21, 2016).
Determinations Under Other Authorities
As mentioned above, we intend to apply this policy when
considering the adequacy of compensatory mitigation programs,
projects, and measures proposed by Federal agencies and applicants
as part of a proposed action and mitigation sponsors. Below we
discuss compliance with several Executive Orders and statutes as
they pertain to this policy.
National Environmental Policy Act (NEPA)
We have analyzed this policy in accordance with the criteria of
the National Environmental Policy Act, as amended (NEPA) (42 U.S.C.
4332(c)), the Council on Environmental Quality's regulations for
implementing the procedural provisions of NEPA (40 CFR parts 1500-
1508), and the Department of the Interior's NEPA procedures (516 DM
2 and 8; 43 CFR part 46). Issuance of policies, directives,
regulations, and guidelines are actions that may generally be
categorically excluded under NEPA (43 CFR 46.210(i)). Based on
comments received, we determined that a categorical exclusion can
apply to this policy; nevertheless, the Service chose to prepare an
environmental assessment (EA) to inform decision makers and the
public regarding the possible effects of the policy revisions.
We announced our intent to prepare an EA pursuant to NEPA when
we published the draft policy. We requested comments on the scope of
the NEPA review, information regarding important environmental
issues that should be addressed, the alternatives to be analyzed,
and issues that should be addressed at the programmatic stage in
order to inform the site-specific stage during the comment period on
the draft policy. Comments from the public were considered in the
drafting of the final EA. The final EA is available on the Internet
at https://www.regulations.gov under Docket Number FWS-HQ-ES-2015-
0165.
Paperwork Reduction Act of 1995
This final policy does not contain any new collections of
information that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.). OMB has reviewed and approved the information
collection requirements for applications for incidental take
permits, annual reports, and notifications of incidental take for
native endangered and threatened species for safe harbor agreements,
candidate conservation agreements with assurances, and habitat
conservation plans under OMB Control Number 1018-0094, which expires
on January 31, 2017. We are currently in the process of seeking
renewal for OMB Control Number 1018-0094. We may not conduct or
sponsor and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation
and Coordination with Indian Tribal Governments,'' and the
Department of the Interior Manual at 512 DM 2, we have considered
possible effects on federally recognized Indian tribes and have
determined that there are no potential adverse effects of issuing
this policy. Our intent with the policy is to provide a consistent
approach to the consideration of compensatory mitigation programs,
projects, and measures, including those taken on Tribal lands. We
will work with Tribes as applicants proposing compensatory
mitigation as part of proposed actions and with Tribes as mitigation
sponsors.
Authority: The authorities for this action include the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.),
and the National Environmental Policy Act (42 U.S.C. 4321 et seq.).
Dated: December 15, 2016.
Daniel M. Ashe,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-30929 Filed 12-23-16; 8:45 am]
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