§ 22.220 - Compensatory mitigation.

§ 22.220 Compensatory mitigation.

(a) Your permit conditions may include a requirement to compensate for the take of eagles.

(1) Any permit authorizing take that would exceed the applicable EMU take limit will require compensatory mitigation, except in circumstances where the action is considered in the best interest of an eagle. Compensatory mitigation for this purpose must ensure the preservation of the affected eagle species by mitigating an amount equal to or greater than the authorized or expected take. Compensatory mitigation must either reduce another ongoing form of mortality or increase the eagle population of the affected species. Compensatory mitigation for golden eagles must be performed at a 1.2:1 (mitigation: take) ratio.

(2) A permit may require compensatory mitigation when the Service determines, according to the best available information, that the take authorized by the permitted activity is not consistent with maintaining the persistence of the local area population of an eagle species.

(b) All required compensatory mitigation actions must:

(1) Be contingent upon application of avoidance and minimization measures to reduce the take to the maximum degree practicable relative to the magnitude of the project's impacts on eagles.

(2) Be sited within:

(i) The same EMU where the permitted take will occur; or

(ii) Another EMU if the Service has reliable data showing that the population affected by the take includes individuals that are reasonably likely to use that EMU during part of their seasonal migration.

(3) If required by the Service, be sited within a specified local area population.

(4) Use the best available science in formulating, crediting, and monitoring the long-term effectiveness of mitigation measures.

(5) Be additional to and improve upon the baseline conditions for the affected eagle species in a manner that is demonstrably new and would not have occurred without the compensatory mitigation.

(6) Be durable and, at a minimum, maintain its intended purpose for as long as required by the mitigation conditions in the permit.

(7) Include mechanisms to account for and address uncertainty and risk of failure of a compensatory mitigation measure.

(8) Include financial assurances that the required compensatory mitigation measures will be implemented in full.

(c) Compensatory mitigation must be approved by the Service and may include conservation banks, in-lieu fee programs, or permittee-responsible mitigation as mitigation providers.

(1) General permittees meet this requirement by obtaining required credits from a Service-approved, third-party mitigation provider. Specific permittees can meet this requirement by obtaining required credits from a Service-approved, third-party mitigation provider or meeting the requirements to be a permittee-responsible mitigation provider as described in paragraph (c)(2) of this section. Third-party mitigation providers (e.g., in-lieu fee programs and conservation banks) obtain Service approval by meeting the requirements to be a mitigation provider as described in paragraph (c)(2) of this section.

(2) To obtain approval as a mitigation provider, potential providers must submit a mitigation plan to the Service that demonstrates how the standards set forth in paragraph (b) of this section will be met. At a minimum, this must include a description of the mitigation, the benefit to eagles, the locations where projects will be implemented, the EMU and local area population affected, the number of credits provided, and an explanation of the rationale for the number of eagle credits provided. The Service must approve the mitigation plan prior to implementation.