[Federal Register Volume 64, Number 175 (Friday, September 10, 1999)]
[Notices]
[Pages 49229-49234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23627]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service, Interior
Final Policy on the National Wildlife Refuge System and
Compensatory Mitigation Under the Section 10/404 Program
AGENCY: Fish and Wildlife Service, Interior
ACTION: Notice.
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SUMMARY: The U.S. Fish and Wildlife Service announces the final policy
on the National Wildlife Refuge System and Compensatory Mitigation
under the Section 10/404 program. We are establishing 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 of the policy is to provide guidance to our personnel when they
are 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.
In general, we will not allow compensatory mitigation on National
Wildlife Refuge System lands because these lands are already targeted
for restoration, and we will be restoring these lands in the future. We
recognize that under some limited and exceptional circumstances,
compensatory mitigation on a National Wildlife Refuge may be
appropriate. If compatible activities occurring on a National Wildlife
Refuge require compensatory mitigation, the mitigation must occur
within the boundaries of the National Wildlife Refuge being affected
and must meet specific criteria. We will not support the use of
National Wildlife Refuge System lands for establishment of mitigation
banks. We 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, we
will not support the preservation of such restored wetlands as
compensatory mitigation for habitat losses from other projects
authorized under the Section 10/404 program, except in limited and
exceptional circumstances.
EFFECTIVE DATE: The policy becomes effective on October 12, 1999.
FOR FURTHER INFORMATION CONTACT: U.S. Fish and Wildlife Service, Dr.
Benjamin N. Tuggle, Chief, Division of Habitat Conservation, 400 ARLSQ,
Washington, D.C. 20240, telephone (703) 358-2161; or Dr. Richard A.
Coleman, Chief, Division of Refuges, 600 ARLSQ, Washington, D.C. 20240,
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. In addition, wetlands
are some of the most important habitats for fish and wildlife resources
on the landscape. We (the U.S. Fish and Wildlife Service) strongly
support and contribute to this national goal by helping to reduce
wetland losses, by restoring lost or degraded wetlands, and by
protecting valuable wetlands by bringing them into the National
Wildlife Refuge System.
We administer over 92 million acres of land and water within the
National Wildlife Refuge System, and we have at least one National
Wildlife Refuge in each of the 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. We may allow public uses of National Wildlife
Refuge System lands, such as wildlife dependent recreation, when they
are compatible with the purposes of the refuge. However, the National
Wildlife Refuge System was established and is being managed first and
foremost for fish, wildlife, and plant conservation.
At times, we have acquired lands that have been disturbed by past
human activities. As such, some National Wildlife Refuges contain
degraded fish and wildlife habitats. The development community, and
others, have asked if these degraded habitats could be used as
mitigation sites for wetland and wildlife habitat losses that occur
outside the National Wildlife Refuge System. In the past, we have
discouraged the use of National Wildlife Refuge System lands for
compensatory mitigation, because we are authorized to restore degraded
habitats within the National Wildlife Refuge System and we will be
restoring these lands in the future, irrespective of off-Refuge
development. However, until now, we have not had a specific policy that
outlines when, or if, compensatory mitigation on National Wildlife
Refuge System lands might be appropriate.
We recognize that allowing compensatory mitigation on a refuge
could result in some resource gains within the National Wildlife Refuge
System. However, if we were to target the National Wildlife Refuge
System for compensatory mitigation, we could be facilitating a
significant net loss of wetlands within the watershed. But we also
recognize there may be some limited and exceptional circumstances where
allowing compensatory
[[Page 49230]]
mitigation to be implemented on a refuge may be in the best interest of
the fish, wildlife, and wetland resources in the area. Therefore, the
policy provides guidance and flexibility to our personnel when they are
determining whether, or under what circumstances, we might allow the
National Wildlife Refuge System to be used for compensatory mitigation
under the Section 10/404 program.
Previous Federal Action
We published the ``Draft Policy on the National Wildlife Refuge
System and Compensatory Mitigation under the Section 10/404 Program''
in the Federal Register on July 31, 1998 (60 FR 58605). The public
comment period closed on September 29, 1998.
Summary of Modifications
We modified the draft policy in response to the public comments and
additional internal review. Here is a summary of the important changes:
1. We clarified how the policy relates to private lands and to
wetlands that have been restored under other Federal programs, such as
the Partners for Fish and Wildlife Program.
2. We clarified our explanation of why the policy does not apply to
impacts to threatened or endangered species. Any impacts associated
with these species are addressed separately under the Endangered
Species Act.
3. We modified the ``grandfather clause'' in Part 7 of the policy.
We inserted a statement indicating that mitigation projects currently
being implemented are exempt from the policy. The policy will only
apply to future projects.
4. We rewrote the policy in ``Plain Language'', updated and
modified several definitions, and changed several technical terms for
consistency.
Responses to Comments
The following is a summary of the major comments raised during the
public comment period. We have included a summary of the comments, our
response, and any modifications to the policy.
Comment: Several commenters asked about the scope of the policy,
what we mean by ``National Wildlife Refuge System land'' and whether
the policy applies to other forms of compensatory mitigation.
Response. The policy applies to all lands and waters within the
National Wildlife Refuge System being considered for use as
compensatory mitigation for activities authorized under the Section 10/
404 program. The policy does not include lands that are within the
authorized refuge acquisition boundary, unless they are already owned
by the Fish and Wildlife Service as part of the NWRS. In addition, we
recognize there are other forms of mitigation being conducted on NWRS
lands, such as under Section 4(f) of the Department of Transportation
Act of 1966; however, the policy only addresses compensatory mitigation
required under the Section 10/404 program.
Comment: Several commenters are concerned that we are applying this
policy to private lands, particularly wetlands restored under the
Conservation Reserve Program, the Wetlands Reserve Program, and the
Partners for Fish and Wildlife Program.
Response: This policy provides guidance to Service personnel
evaluating compensatory mitigation proposals for activities authorized
under the Section 10/404 program. In contrast to circumstances in which
mitigation is proposed on lands within the National Wildlife Refuge
System and thus under the control of the Service, our recommendations
regarding mitigation proposals on private lands are advisory and not
controlling upon the permitting agency.
Preservation of existing wetland habitat compensates for permitted
wetland loss in only those limited and exceptional circumstances in
which a change in ownership or protection status serves to maintain
habitat that would otherwise be certain to be lost. We expect that many
private landowners who have used Federal conservation programs to
restore wetlands on their lands will allow those wetlands to remain
after the term of their restoration agreement or easement expires.
Accordingly, we will not recommend or support preservation of those
restored wetlands as compensatory mitigation, except in the limited and
exceptional circumstances in which their future loss is assured in the
absence of additional conservation measures.
Comment: Several commenters stated that if wetlands restored under
the Partners for Fish and Wildlife Program or the Conservation Reserve
Program cannot be used for compensatory mitigation, they may be
converted to non-wetland uses (e.g., agriculture) after the 10-year
agreement expires. The commenters believe that Section 10/404 permit
holders should target these lands for compensatory mitigation (i.e.,
preservation) to avoid conversion.
Response: We have clarified the policy to indicate that where
wetlands have been restored under Federal wetland restoration programs,
such as the Partners for Fish and Wildlife Program, we will not support
the use of these lands as compensatory mitigation under the Section 10/
404 program, during the term of the agreement (e.g., 10 years). Upon
expiration of the wetland restoration agreement, we will not support
the preservation of such restored wetlands as compensatory mitigation
for wetland losses under the Section 10/404 program, except in limited
and exceptional circumstances. This is consistent with our Mitigation
Policy and the Federal guidelines for establishing, using, and
operating mitigation banks.
Comment: Several commenters asked that we delete the restrictions
on adding mitigation bank lands to a refuge.
Response: The policy retains the restrictions on accepting
mitigation bank lands. We recognize the policy may necessitate changes
in how mitigation banking and wetland restoration is done in
conjunction with National Wildlife Refuge System lands. However, the
purpose of the policy is to ensure national consistency regarding
compensatory mitigation under the Section 10/404 program and the
National Wildlife Refuge System.
Comment: Several commenters asked why we are adopting such rigid
guidelines for accepting donated mitigation bank lands into the
National Wildlife Refuge System since mitigation banking represents an
important opportunity to expand our refuges.
Response: We recognize that accepting a mitigation bank into the
National Wildlife Refuge System is an opportunity to protect wetlands
and other wildlife habitat produced by compensatory mitigation
projects. That is why we included specific provisions that allow these
transfers to proceed. However, we want to avoid bringing wetlands and
other habitats into the National Wildlife Refuge System that are either
not fully restored, do not have sufficient operation and maintenance
funding, have mitigation credits running, or otherwise diminish the
responsibilities of the Section 10/404 program to fulfill its wetland
preservation goals. That is, we are willing to accept donated
mitigation bank lands only when they are clear of any outstanding
mitigation requirements and associated liabilities.
Comment: Several commenters asked why the policy prohibits
mitigation banks on National Wildlife Refuge System lands under all
circumstances, since mitigation banking is another form of compensatory
mitigation.
Response: If we allow mitigation banks to be established on
National Wildlife Refuge System lands, it could
[[Page 49231]]
result in a net loss of wetlands in the watershed. Since National
Wildlife Refuge System lands are already protected and we will be
restoring these lands, allowing mitigation banking on National Wildlife
Refuge System lands would not replace the off-Refuge wetland functions
and values that are lost to permitted development. By establishing
mitigation banks on National Wildlife Refuge System lands and selling
the mitigation credits, we would be ``trading'' off-Refuge wetlands for
accelerated restoration of on-Refuge wetlands. Although this may result
in some short-term habitat gains on National Wildlife Refuge System
lands, in the long-term, it could facilitate a net loss of wetlands in
the watershed.
In addition, there are several other concerns:
1. There may be an appearance of a conflict of interest if we are
also commenting on and developing mitigation options for the permitted
development through the Section
10/404 program;
2. If we allow mitigation banking on National Wildlife Refuge
System lands, we might be assigned some degree of liability for future
operation and maintenance of the bank if the bank sponsor abandons the
project prior to satisfying all mitigation responsibilities; and
3. If we allow Section 10/404 permittees to establish mitigation
banks on National Wildlife Refuge System lands, this may undermine
entrepreneurial (i.e., economically-based) efforts to develop private
mitigation banks elsewhere in the watershed.
Comment: One commenter asked why the policy does not apply to
threatened or endangered species. The commenter is concerned that if a
listed species is adversely affected by development permitted under
Section 10/404, we might allow compensatory mitigation for threatened
or endangered species to occur on National Wildlife Refuge System
lands.
Response: We have clarified the policy to specifically state that
consideration of impacts to threatened or endangered species is not
within the scope of this policy. Any such concerns are addressed under
the Endangered Species Act and its associated regulations at 50 CFR
Parts 17, 402, and 424.
Comment: The ``grandfather clause'' in the policy could allow a
significant amount of mitigation activities to be implemented on NWRS
lands which are inconsistent with the policy. In the draft policy, the
clause states: ``The policy does not apply to existing mitigation
agreements with the Service in effect at the time of policy issuance.''
However, we currently have several long-term agreements with various
organizations and agencies that allow compensatory mitigation to be
conducted in conjunction with National Wildlife Refuges. These
agreements could provide a permanent exemption from the policy.
Response: We have deleted the statement that exempts existing
mitigation agreements from the policy. Instead, we have stated that the
policy does not apply to existing mitigation projects that are
currently being implemented. However, we will review all mitigation
agreements, and modify them as necessary, to ensure they are consistent
with the policy. In other words, all mitigation projects currently
underway are exempt, but any new projects must comply with the policy.
Record of Compliance
We have prepared a Record of Compliance documenting that this rule-
making action complies with the various statutory, Executive Order, and
Department of the Interior requirements that are applicable to
rulemakings. A copy is available upon request. (See FOR FURTHER
INFORMATION CONTACT.)
The number of acres of wetlands restored on National Wildlife
Refuge System lands in FY96 was 79,291, but only approximately 10 acres
were restored as compensatory mitigation under the Section 10/404
program. Likewise, of the 60,708 acres of wetlands restored on National
Wildlife Refuge System lands in FY97, only 75 acres were restored under
the Section 10/404 program. Since the policy was developed to reflect
the informal practices currently used by Service personnel, the policy
will serve to codify, but not significantly change, agency practice.
Therefore, the numbers of acres of wetlands restored on National
Wildlife Refuge System lands as mitigation for activities authorized
under the Section 10/404 program will probably not change significantly
with the policy.
This policy was reviewed under Executive Order 12866. As discussed
above, only 85 acres during fiscal years 1996 and 1997 were restored on
national wildlife refuges as a result of compensatory mitigation while
a more than 130,000 acres were restored. Accordingly, 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.). Similarly, this policy is not a major rule under 5 U.S.C.
804(2), the Small Business Regulatory Enforcement Fairness Act.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,
et seq.), this policy does not affect State, local, and tribal
governments since it only applies to lands and activities within the
National Wildlife Refuge System. This policy does 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.
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.
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.
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. This policy does not require any information collection
for which Office of Management Budget approval is required under the
Paperwork Reduction Act (44 U.S.C. 3501 et. seq.).
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. 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. The
action is categorically excluded under Departmental NEPA procedures
(516 DM 2, Appendix 1.10), which applies to policies, directives,
regulations, and guidelines of an administrative, legal, technical, or
procedural nature; or the environmental effects of which are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will be subject later to the NEPA process, either collectively or
case-by-case.
[[Page 49232]]
Final Policy on the National Wildlife Refuge System and
Compensatory Mitigation Under the Section 10/404 Permit Program
Part 1. What Is the Purpose of This Policy?
We are establishing a national policy on 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. Our purpose is to provide guidance to our
personnel that have a decision making role for the use of lands within
the National Wildlife Refuge System as it applies to the Section 10/404
program.
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. The Federal government
established National Wildlife Refuges 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)). We are currently managing National
Wildlife Refuge System lands to obtain the maximum fish, wildlife, and
ecological benefits. Therefore, our management and restoration
activities will occur regardless of other activities, including those
authorized under the Section 10/404 program.
We provide recommendations to the Department of the Army, Corps of
Engineers, for mitigation using the Clean Water Act, the Section
404(b)(1) guidelines, the Fish and Wildlife Coordination Act, the
National Environmental Policy Act, and our Mitigation Policy (January
23, 1981, 46 FR 7644). These authorities and guidance documents state
that the biological impacts must be determined by comparing the
environmental conditions with the project in place (the ``with-project
conditions'') against the environmental conditions without the project
in place (the ``without-project conditions''). Under our Mitigation
Policy, we recommend compensatory mitigation for unavoidable adverse
impacts to fish and wildlife resources only after project sponsors have
taken all practicable actions to avoid or minimize the impacts.
We will continue to restore wetlands and wildlife habitat on
National Wildlife Refuge System lands independent of off-Refuge water
resource development activities; therefore, our NWRS restoration
activities are part of the environmental conditions that would occur
without the development project authorized by the Section 10/404
permit. If we allow wetland restoration activities to occur on National
Wildlife Refuge System lands as compensatory mitigation for off-Refuge
impacts authorized under Section 10/404, we could be facilitating a
long-term net loss of wetlands within the watershed. Therefore, we will
not recommend or allow compensatory mitigation on National Wildlife
Refuge System lands for activities authorized under the Section 10/404
program, except as provided in this policy.
Part 2. What Are Definitions Used in This Policy?
There are numerous technical terms that are used throughout the
policy. We are providing the definitions to ensure clarity and
consistency.
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.
Bank sponsor. Any public or private entity responsible for
establishing and, in most circumstances, operating a mitigation bank.
Compensatory mitigation. For purposes of Section 10/404,
compensatory mitigation is the restoration, creation, enhancement, or
in exceptional circumstances, preservation of wetlands and/or other
aquatic resources for the purpose of compensating for unavoidable
adverse impacts which remain after all appropriate and practicable
avoidance and minimization has been achieved (Federal Guidance for the
Establishment, Use and Operation of Mitigation Banks (60 FR 58605)).
Credit. A unit of measure representing the accrual or attainment of
aquatic functions at a mitigation bank; the measure of function is
typically indexed to the number of wetland acres restored, created,
enhanced, or preserved (Federal Guidance for the Establishment, Use and
Operation of Mitigation Banks (60 FR 58605)).
Direct effects are caused by the action and occur at the same time
and place. (CEQ NEPA regulations; 40 CFR 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 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 bank. A mitigation bank is a site where wetland and/or
other aquatic resources are restored, created, enhanced, or in
exceptional circumstances, preserved expressly for the purpose of
providing compensatory mitigation in advance of authorized impacts to
similar resources. For purpose of Section 10/404, use of a mitigation
bank may only be authorized when impacts are unavoidable (Federal
Guidance for the Establishment, Use and Operation of Mitigation Banks
(60 FR 58605)).
National Wildlife Refuge means a designated area of land, water or
an interest in land or water within the
[[Page 49233]]
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. Available and capable of being done after taking into
consideration cost, existing technology, and logistics in light of
overall project purposes (Federal Guidance for the Establishment, Use
and Operation of Mitigation Banks (60 FR 58605)).
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).
Restoration. Re-establishment of wetland and/or other aquatic
resource characteristics and function(s) at a site where they have
ceased to exist, or exist in a substantially degraded state (Federal
Guidance for the Establishment, Use and Operation of Mitigation Banks
(60 FR 58605).
Part 3. What Are the Restrictions Regarding Compensatory Mitigation on
National Wildlife Refuge System Lands?
We will not allow compensatory mitigation for habitat losses
authorized 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 U.S. 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 consistent with the purposes for
which the refuge was established, and is consistent with an approved
Comprehensive Conservation Plan or other approved management plan(s)
for the refuge; and
(c) The mitigation 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 we are under no
obligation to allow 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.
Part 4. What Are the Restrictions for Mitigation Banks on National
Wildlife Refuge System Lands?
We will not allow use of National Wildlife Refuge System lands for
mitigation banks to compensate for the effects of activities authorized
by the Section 10/404 program. We may accept mitigation banks as
additions to 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 approved management plan(s)
for the refuge, as determined by the Refuge manager;
(b) The mitigation bank is consistent with the mitigation banking
agreement as determined by the appropriate Ecological Services Field
Office supervisor;
(c) The bank 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'' (November
28, 1995; 60 FR 58605);
(d) The mitigation bank is an established, functioning wetland (or
other wildlife habitat as appropriate) and the bank sponsor ensures
that all success criteria have been met in accordance with the approved
mitigation plan; and
(e) The bank sponsor withdraws or forfeits all mitigation credits
before we acquire the bank. The Regional Director may grant exceptions
to the requirement that all mitigation credits must be withdrawn or
forfeited prior to acquisition. However, if we accept a mitigation bank
before all credits are withdrawn, the bank sponsor must remain
responsible for meeting the criteria in the mitigation banking
agreement and must remain accountable for the mitigation credits.
The Regional Director must approve the addition of a mitigation
bank to a National Wildlife Refuge. If lands within the authorized
refuge acquisition boundary have been fully acquired, inclusion of a
mitigation bank must be approved by the Director.
Part 5. What Are the Requirements for Compensatory Mitigation for
Direct Effects on National Wildlife Refuge System Lands?
If we allow development activities under a Section 10/404 permit to
occur on a National Wildlife Refuge that require compensatory
mitigation, the mitigation must occur on the National Wildlife Refuge
being directly affected by the activity. However, before we can
authorize these activities on National Wildlife Refuge System lands,
the Refuge manager must:
(a) Determine the activity is compatible;
(b) Ensure the project sponsor has made every effort to avoid and
minimize the effects before they request compensatory mitigation;
(c) Determine the mitigation activities support the mission of the
National Wildlife Refuge System and are consistent with the purposes of
the refuge;
(d) Issue a special use permit, if appropriate; and
(e) Coordinate with the appropriate Ecological Services Field
Office supervisor.
Part 6. How Do We Treat Lands Protected by Other Federal Wetland
Programs?
Where habitats are protected or restored under other Federal
programs or activities designed to increase the Nation's wetlands, we
will not recommend, support, or advocate the use of these lands as
compensatory mitigation, including mitigation banks, for habitat losses
authorized under Section 10/404, under any circumstances, during the
term of the restoration agreement. These other Federal programs and
activities include easement areas associated with inventory and debt
restructure
[[Page 49234]]
properties under the Food Security Act, lands protected or restored for
conservation purposes under fee title transfers, lands protected by a
habitat management agreement with the Service, or habitats protected by
programs authorized by the Consolidated Farm and Rural Development Act,
and the Food Security Act of 1985. After the wetland restoration
agreement has expired, we will not recommend, support, or advocate the
preservation of such restored wetlands as compensatory mitigation for
habitat losses authorized under the Section 10/404 program, except in
limited and exceptional circumstances.
Part 7. What Is the Scope of the Policy?
This policy applies to all lands and waters within the National
Wildlife Refuge System considered for use as compensatory mitigation
for activities 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 projects currently being implemented. However, we
will review all mitigation agreements currently in effect, and modify
them as necessary, to ensure consistency with this policy.
The policy does not apply to public lands administered by other
government agencies nor does it apply to private lands. However, the
purpose of the policy is to provide guidance to our personnel when they
are evaluating proposals for compensatory mitigation regarding a
proposed Section 10/404 permit. These proposed permits could be for
development actions occurring on either public or private lands.
This policy does not apply to threatened or endangered species. The
requirements for threatened and endangered species are covered in the
Endangered Species Act of 1973 and accompanying regulations at 50 CFR
Parts 17, 402, and 424. Under Section 7 of the Endangered Species Act,
as amended, all Federal agencies shall ensure that activities
authorized, funded, or carried out by them are not likely to jeopardize
the continued existence of listed species or result in the destruction
or adverse modification of critical habitat. Mitigating adverse impacts
of a project would not in itself be viewed as satisfactory agency
compliance with Section 7. Furthermore, it is clear to the Service that
Congress considered the traditional concept of mitigation to be
inappropriate for Federal activities impacting listed species or their
critical habitat.
Part 8. What Are the Authorities for This Policy?
We are establishing this policy in accordance with the following
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 Federal agencies, such as 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.
Part 9. What References Are Cited in This Policy?
Federal Guidance for the Establishment, Use, and Operation of
Mitigation Banks, II. E. Long-Term Management, Monitoring, and
Remediation (November 28, 1995, 60 FR 58605).
U.S. Fish and Wildlife Service Draft Policy on the National
Wildlife Refuge System and Compensatory Mitigation under the Section
10/404 Program; Notice of Draft Policy and request for comments (July
31, 1998, 63 FR 40928-40932).
U.S. Fish and Wildlife Service Mitigation Policy; Notice of Final
Policy (January 23, 1981, 46 FR 7644) as corrected.
Dated: March 12, 1999.
Jamie Rappaport Clark,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 99-23627 Filed 9-9-99; 8:45 am]
BILLING CODE 4310-55-U
