AGENCY: Fish and Wildlife Service.
ACTION: Announcement of draft policy; request for public comments.
SUMMARY: The U.S. Fish and Wildlife Service announces a draft policy on the National Wildlife Refuge System and Compensatory Mitigation under the Section 10/404 program. This policy establishes national guidelines regarding the use of the National Wildlife Refuge System for compensatory mitigation requirements for water resource development projects authorized by the Department of the Army under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The purpose is to provide guidance to Service personnel when evaluating whether a National Wildlife Refuge should be considered as a site for wetland restoration, enhancement, or creation to replace wetlands lost to dredge and fill impacts authorized by a Section 10/404 permit.
The Service generally will not allow compensatory mitigation on National Wildlife Refuge System lands because these lands are already targeted for restoration and the Service will be restoring these lands in the future. However, the Service recognizes that under some limited and exceptional circumstances, compensatory mitigation on a National Wildlife Refuge may be appropriate. The Service will not support the use of National Wildlife Refuge System lands for establishment of mitigation banks. If compatible activities occurring on a National Wildlife Refuge require compensatory mitigation, this mitigation must occur within the boundaries of the National Wildlife Refuge being affected and must meet specific criteria. The Service may accept mitigation banks or mitigation projects as additions to the National Wildlife Refuge System subject to specific criteria. Where habitats have already been protected or restored under other Federal programs designed to increase the Nation's wetlands, the Service will not recommend, support, or advocate the use of such lands as compensatory mitigation, including mitigation banks, for habitat losses authorized under Section 10/404.
DATES: Comments from all interested parties must be received by September 29, 1998.
ADDRESSES: Send any comments or material concerning the Draft Policy on the National Wildlife Refuge System and Compensatory Mitigation under the Section 10/404 program to the Chief, Division of Habitat Conservation, U.S. Fish and Wildlife Service, 400 ARLSQ, Washington, DC 20240. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Dr. Benjamin N. Tuggle, Chief, U.S. Fish and Wildlife Service, Division of Habitat Conservation, Telephone (703) 358-2161 or facsimile (703) 358-1869, or Dr. Richard A. Coleman, Chief, U.S. Fish and Wildlife Service, Division of Refuges, Telephone (703) 358-1744.
SUPPLEMENTARY INFORMATION:
Background
The national goal of no net loss of wetlands recognizes the importance and the special significance of wetlands to a variety of functions and values including water quality, flood damage reduction, groundwater recharge, and reduced sedimentation. Further, wetlands are some of the most important habitats for fish and wildlife resources on the landscape. The Service strongly supports and contributes to this national goal by helping to reduce wetland losses, restoring lost or degraded wetlands, and protecting valuable wetlands by bringing them into the National Wildlife Refuge System.
The Service manages over 92 million acres of land and water within the National Wildlife Refuge System and there are National Wildlife Refuges in all 50 States. The mission of the National Wildlife Refuge System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans. Although the Service may allow refuge uses, when determined to be compatible, such as wildlife dependent recreation, the National Wildlife Refuge System was established and is being managed first and foremost for fish, wildlife, and plant conservation.
At times, the Service has acquired lands that have been disturbed by past human activities. As such, some National Wildlife Refuges contain degraded fish and wildlife habitat. The Service has been asked if these degraded habitats could be used as potential mitigation sites for habitat losses that occur outside the National Wildlife Refuge System. Historically, the Service has discouraged the use of National Wildlife Refuge System lands for compensatory mitigation (replacement of or substitution for resource losses that compensate for project impacts) because the Service is authorized to restore degraded habitats within the National Wildlife Refuge System and will be restoring these lands in the future, irrespective of off-Refuge development activities.
The Service recognizes that allowing compensatory mitigation on a National Wildlife Refuge could result in some resource gains on Service lands. However, targeting the National Wildlife Refuge System for such purposes could result in significant resource losses outside the Refuge boundary. The policy provides guidance to Service personnel when determining whether, or under what circumstances, the Service would allow the National Wildlife Refuge System to be used for compensatory mitigation under the Section 10/404 Program.
This establishes national policy of the U.S. Fish and Wildlife Service related to the National Wildlife Refuge System and compensatory mitigation requirements for water resource development activities administered by the Department of the Army under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The purpose of the policy is to provide guidance to Service personnel when evaluating whether a National Wildlife Refuge should be considered as a site for wetland restoration, enhancement, or creation to replace wetlands lost to dredge and fill operations authorized by a Section 10/ 404 permit.
The mission of the National Wildlife Refuge System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans. These Refuges were established for the restoration, preservation, development, and management of wildlife and wildlands habitat; for the protection and preservation of endangered or threatened species and their habitat; and for the management of wildlife and wildlands to obtain the maximum benefits from these resources (50 CFR 25.11(b)).
Management measures to obtain fish, wildlife, and ecological benefits from National Wildlife Refuge lands will occur regardless of other activities authorized under the Section 10/404 program. Under the Service's Mitigation Policy, appropriate and practicable compensatory mitigation is required for unavoidable adverse impacts on fish and wildlife resources, resulting from development projects, which remain after all appropriate and practicable minimization actions have been taken.
The Service provides recommendations for compensatory mitigation using the Clean Water Act, Section 404(b)(1) guidelines, the Fish and Wildlife Coordination Act, the National Environmental Policy Act, and the U.S. Fish and Wildlife Services' Mitigation Policy. These authorities and guidance documents state that net biological impacts shall be determined by comparing the environmental conditions with the project in place (the ``with-project conditions'') versus the environmental conditions without the project (the ``without-project conditions''). Wetland and habitat restoration activities on National Wildlife Refuge System lands will proceed independent of off-Refuge water resource development activities. Therefore, on-Refuge restoration activities are part of the environmental conditions that would occur without the water resource development project. As such, allowing wetland restoration activities to occur on National Wildlife Refuge System lands, as compensatory mitigation for off-Refuge impacts pursuant to Section 10/404, would result in an overall net loss of wetlands.
The following definitions apply for the purposes of this policy.
Appropriate. The determination of what level of mitigation constitutes appropriate is based on the comparison between the functions and values of the aquatic resources that will be impacted and the potential of the proposed creation, restoration, enhancement, and/ or preservation at the mitigation site to replace the lost functions and values after subtracting the baseline functions and values of the mitigation site.
Compensatory mitigation is the full replacement of project-induced losses to fish and wildlife resources, provided such full replacement is consistent with the appropriate mitigation planning goal. (U.S. Fish and Wildlife Service Mitigation Policy, Manual Chapter 501 FW 2).
Direct Effects are caused by the action and occur at the same time and place. (CEQ NEPA regulations; 40 CFR Sec. 1508.8(a)).
Director means the Director of the United States Fish and Wildlife Service.
Fish and wildlife resources means birds, fish, mammals, and all other classes of wild animals and all types of aquatic and land vegetation upon which wildlife is dependent (U.S. Fish and Wildlife Service Mitigation Policy, Manual Chapter 501 FW 2).
Habitat means the area which provides direct support for a given species, population, or community. It includes all environmental features that comprise an area such as air quality, water quality, vegetation and soil characteristics and water supply, including both surface and groundwater. (U.S. Fish and Wildlife Service Mitigation Policy, Manual Chapter 501 FW 2).
Indirect Effects are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable (CEQ NEPA regulations; 40 CFR Sec. 1508.8(b)).
Minimize means to reduce to the smallest practicable amount or degree. (U.S. Fish and Wildlife Service Mitigation Policy, Manual Chapter 501 FW 2).
Mitigation includes: (a) Avoiding the impact altogether by not taking a certain action or parts of an action; (b) minimizing impacts by limiting the degree or magnitude of the action and its implementation; (c) rectifying the impact by repairing, rehabilitating, or restoring the affected environment; (d) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and (e) compensating for the impact by replacing or providing substitute resources or environments.'' (CEQ NEPA regulations; 40 CFR 1508.20(a-e)).
Mitigation banking is habitat protection or improvements conducted expressly for the purpose of compensating for unavoidable losses in advance of authorized impacts to similar resources (U.S. Fish and Wildlife Service Mitigation Policy, Manual Chapter 501 FW 2).
National Wildlife Refuge means a designated area of land, water or an interest in land or water within the National Wildlife Refuge System, but does not include Coordination Areas. (National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee: 80 Stat. 927), as amended.
National Wildlife Refuge System means all lands, waters, and interests administered by the U.S. Fish and Wildlife Service as wildlife refuges, areas for the protection and conservation of fish and wildlife species threatened with extinction, wildlife ranges, game ranges, wildlife management areas, or waterfowl production areas, and other areas for the protection and conservation of fish and wildlife. (National Wildlife Refuge System Administration Act of 1966; 16 U.S.C. 668dd-668ee: 80 Stat. 927 as amended.
Practicable means capable of being done within existing constraints. The test of what is practicable depends on the situation and includes consideration of the pertinent factors, such as environment, cost, or technology (U.S. Fish and Wildlife Service Mitigation Policy, Manual Chapter 501 FW 2).
Project means any action, planning or approval process relating to an action that will directly or indirectly affect fish and wildlife resources. (U.S. Fish and Wildlife Service Mitigation Policy, Manual Chapter 501 FW 2).
Purposes of the refuge means the purposes specified in or derived from law, proclamation, executive order, agreement, public land order, donation document, or administrative memorandum establishing, authorizing, or expanding a refuge, refuge unit, or refuge subunit. (National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee: 80 Stat. 927), as amended.
The Service will not allow compensatory mitigation for habitat losses that occur through the Section 10/404 program to be implemented on lands and waters within the National Wildlife Refuge System except under limited and exceptional circumstances. The criteria for considering compensatory mitigation within the National Wildlife Refuge System are as follows:
(a) the proposed water resource development project, including the mitigation plan, is consistent with the Section 404(b)(1) guidelines, has undergone all appropriate sequencing for avoidance and minimization of impacts, and is consistent with the Fish and Wildlife Service's Mitigation Policy (Manual Chapter 501 FW 2); and
(b) the proposed mitigation plan supports the mission of the National Wildlife Refuge System, is compatible with the purposes for which the Refuge was established, and is consistent with an approved Comprehensive Conservation Plan or other current management plans for the Refuge; and
(c) the mitigation plan would result in significantly increased natural resource benefits when compared to other appropriate, off-site mitigation options as determined by the Ecological Services Field Office supervisor and the Refuge Manager; and
(d) the mitigation plan is written to ensure the Service is under no obligation to provide compensatory mitigation on any National Wildlife Refuge System lands in the future; and
(e) the Regional Director recommends the mitigation plan to the Director for approval.
The Service will not support the use of National Wildlife Refuge System lands for establishment of mitigation banks pursuant to compensatory mitigation authorized by the Section 10/404 program. The Service may accept mitigation banks as additions to a unit of the National Wildlife Refuge System under the following conditions:
(a) The mitigation bank is directly related to the purposes for which the Refuge was established and is consistent with an approved Comprehensive Conservation Plan or other current management plans for the Refuge, as determined by the Refuge Manager; and
(b) is consistent with the mitigation banking agreement as determined by the appropriate Ecological Services Field Office supervisor; and
(c) the project sponsor fully funds the transfer, management, and protection of the mitigation bank/project as outlined in the ``Federal Guidance for the Establishment, Use, and Operation of Mitigation Banks, II. E. Long-Term Management, Monitoring, and Remediation'' (60 FR 58605); and
(d) if the Service elects to accept a mitigation bank, the bank must be an established, functioning wetland and the mitigation bank sponsor must ensure that all success criteria have been met in accordance with the approved mitigation plan. The bank sponsor must withdraw or forfeit all mitigation credits prior to acquisition by the Service. The Regional Director may grant exceptions to the policy requirement that all mitigation credits must be withdrawn or forfeited prior to acquisition by the Service. If the Service elects to accept a mitigation bank before all credits are withdrawn, the project sponsor must be responsible for meeting the criteria in the mitigation banking agreement and must remain accountable for the mitigation credits.
(e) the Regional Director must approve the addition of a mitigation bank to a National Wildlife Refuge. If acquisition is beyond the authorized acquisition boundary and exceeds the current acreage limitations, the Director must provide final approval.
In circumstances where activities occurring within a National Wildlife Refuge require compensatory mitigation, the mitigation must occur on the National Wildlife Refuge being directly affected by the activity. The activity must first have been determined to be compatible. Under no circumstances can an activity which has been determined to be incompatible be allowed in exchange for compensatory mitigation.
Every effort must be made to avoid and minimize the effects before compensatory mitigation is applied. Further, mitigation activities must support the mission of the National Wildlife Refuge System; must be compatible with the purposes of the refuge and the Refuge System mission; must be authorized by and be subject to, the terms and conditions of a Special Use Permit issued by the Refuge manager; and must be coordinated with the appropriate Ecological Services Office supervisor.
Where habitats are protected or restored under other Federal programs designed to increase the Nation's wetlands, the Service will not recommend, support, or advocate the use of such lands as compensatory mitigation, including mitigation banks, for habitat losses authorized under Section 10/404. This includes Federal programs that protect or restore fish and wildlife habitats on private agricultural lands, and includes, but is not limited to, easement areas associated with inventory and debt restructure properties under the Food Security Act, lands protected or restored for conservation purposes under fee title transfers, lands protected by a habitat management agreement, or habitats protected by programs authorized by the Consolidated Farm and Rural Development Act, as amended, and the Food Security Act of 1985, as amended.
A. Coverage
This policy applies to all lands and waters within the National Wildlife Refuge System pursuant to compensatory mitigation requirements authorized under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. The policy does not apply to existing mitigation agreements with the Service in effect at the time of policy issuance.
The policy extends to Federal programs that increase the Nation's wetlands or protect fish and wildlife habitats on private lands. This includes wetlands protected or restored by programs authorized by the Food Security Act of 1985, as amended, and the Consolidated Farm and Rural Development Act, as amended.
B. Exclusions
The policy does not apply to public lands and waters administered by other government agencies nor is it intended to provide guidance to Service personnel when evaluating compensatory mitigation proposals on other public lands.
This policy does not apply to conservation measures to protect or restore threatened or endangered species. The Endangered Species Act of 1973, as amended and accompanying regulations at 50 CFR parts 17, 402, and 424 outline the mitigation requirements for threatened and endangered species.
Regional Directors are responsible for ensuring compliance with this policy.
Public Comments Solicited
The Service requests comments on the Draft Policy on the National Wildlife Refuge System and Compensatory Mitigation under the Section 10/404 Program. The Service is particularly interested in comments on the criteria for allowing compensatory mitigation to occur within the National Wildlife Refuge System (Part 3a-e, Part 5). In addition, the Service is requesting comments on any cultural, economic, or other impacts this policy may have on regulated entities, government agencies, Tribes, or the public.
The Service will consider any comments and additional information received within 60 days from the date of this publication. To ease review and consideration of submitted comments, the Service prefers that reviewers organize their comments by Part (e.g., Part 1. Purpose, Part 2. Definitions, etc). Author/Editor
The author/editor of this document is Mark Bagdovitz, U.S. Fish and Wildlife Service, Division of Habitat Conservation (see ADDRESSES section).
This policy is established in accordance with the following major authorities:
Fish and Wildlife Act of 1956 (16 U.S.C. 742(a)-754). This Act authorizes the development and distribution of fish and wildlife information to the public, the Congress, and the President; and the development of policies and procedures that are necessary and desirable to carry out the laws relating to fish and wildlife.
Fish and Wildlife Coordination Act (16 U.S.C. 661-667(e)); This Act authorizes the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the State agencies responsible for fish and wildlife resources to investigate all proposed Federal undertakings and non-Federal actions needing a Federal permit or license which would impound, divert, deepen, or otherwise control or modify a stream or other body of water and to make mitigation and enhancement recommendations to the involved Federal agency.
Watershed Protection and Flood Prevention Act (16 U.S.C. 1001- 1009); This Act allows the Secretary of the Interior to make surveys, investigation, and ``* * * prepare a report with recommendations concerning the conservation and development of wildlife resources on small watershed projects.''
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347). This Act and its implementing regulations (40 CFR part 1500-1508) requires that the U.S. Fish and Wildlife Service be notified of all major Federal actions affecting fish and wildlife resources and their views and recommendations solicited. In addition, the Act provides that the Congress authorize and directs that, to the fullest extent possible, all agencies of the Federal Government identify and develop methods and procedures which will ensure that presently unquantified environmental values may be given appropriate consideration in decision making along with economic and technical considerations.
National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee: 80 Stat. 927), as amended. This Act states that the mission of the National Wildlife Refuge System is to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans. The Act requires, among other things, the Secretary of the Interior: to maintain the biological integrity, diversity, and environmental health of the National Wildlife Refuge System; to develop comprehensive conservation plans for National Wildlife Refuges; and not to initiate or permit a new use of a refuge or expand, renew, or extend an existing use of a refuge, unless the use has been determined to be compatible.
The Record of Compliance certifies that this rule-making action complies with the various statutory, Executive Order, and Department of the Interior requirements that are applicable to rulemakings.
1. Regulatory Planning and Review. This policy is a significant regulatory action and has been reviewed by the Office of Management and Budget under Executive Order 12866.
a. Since this policy only affects lands and activities within the National Wildlife Refuge System and is consistent with current Service practice, the Service does not anticipate an increase in economic effects associated with the proposed policy. This policy will not have an annual economic effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required because of small acreage involved.
b. This policy has the potential to create inconsistencies with other agencies' actions. Although the proposed policy only affects lands and activities within the National Wildlife Refuge System, it could establish precedent for other land management agencies.
c. This proposed policy will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients since the policy only applies to lands and activities within the National Wildlife Refuge System.
d. This is a new policy that is intended to provide national consistency regarding compensatory mitigation and the applicability of National Wildlife Refuge System lands. The policy was developed to be consistent with the National Wildlife Refuge System Administration Act of 1966 as amended, the U.S. Fish and Wildlife Service's Mitigation Policy (1981), and current agency practice.
2. Regulatory Flexibility Act. I certify that this policy will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). An initial Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required.
3. Small Business Regulatory Enforcement Fairness Act. The Office of Management and Budget has determined that this policy is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This policy:
a. Does not have an annual effect on the economy of $100 million or more since this policy will only affect lands and activities within the National Wildlife Refuge System and is consistent with current Service practice;
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions since this policy only affects lands and activities within the National Wildlife Refuge System; and
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises since this policy only affects lands and activities within the National Wildlife Refuge System.
4. Unfunded Mandates Reform Act. In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, et seq.):
a. This policy will not ``significantly or uniquely'' affect small governments. This policy will not affect other governments since it only applies to lands and activities within the National Wildlife Refuge System. A Small Government Agency Plan is not required.
b. This policy will not produce a Federal mandate of $100 million or greater in any year therefore, it is not a ``significant regulatory action'' under the Unfunded Mandates Reform Act.
5. Takings. In accordance with Executive Order 12630, the policy does not have significant takings implications. This policy will not result in takings since it only applies to lands and activities within the National Wildlife Refuge System. Private property will not be affected by this policy. A takings implication assessment is not required.
6. Federalism. In accordance with Executive Order 12612, the policy does not have significant Federalism effects. This policy will not affect other governments since it only applies to lands and activities within the National Wildlife Refuge System. This policy will not affect small governments. A Federalism assessment is not required.
7. Civil Justice Reform. In accordance with Executive Order 12988, the Office of the Solicitor has determined that the policy does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
8. Paperwork Reduction Act. This regulation does not require any information collection under the Paperwork Reduction Act.
9. National Environmental Policy Act. We have analyzed this policy in accordance with the criteria of the National Environmental Policy Act and 318 DM 2.2(g) and 6.3(D). This policy does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement/assessment is not required.
10. Government-to-Government Relationship with Tribes. We have evaluated possible effects on Federally recognized Indian tribes in accordance with the President's memorandum of April 29, 1994, ``Government-to-Government Relations with Native American Tribal Governments'' (59 FR 22951) and 512 DM 2. We have determined there are no effects on Federally recognized Indian tribes since it only applies to lands and activities within the National Wildlife Refuge System.
Dated: April 6, 1998.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 98-20458 Filed 7-30-98; 8:45 am]
BILLING CODE 4310-55-P
Extracted from Federal Register: July 31, 1998 (Volume 63, Number 147)
[Notices] [Page 40928-40932]
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