83_FR_36615 83 FR 36469 - Endangered and Threatened Wildlife and Plants; Endangered Species Act Compensatory Mitigation Policy

83 FR 36469 - Endangered and Threatened Wildlife and Plants; Endangered Species Act Compensatory Mitigation Policy

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 83, Issue 146 (July 30, 2018)

Page Range36469-36472
FR Document2018-16171

We, the U.S. Fish and Wildlife Service (Service), announce we are withdrawing the Endangered Species Act (ESA) Compensatory Mitigation Policy, published December 27, 2016 (ESA-CMP). In our document of November 6, 2017 we requested additional public comments regarding the policy's overall mitigation planning goal of net conservation gain. We are now withdrawing this policy. The Service does not have authority to require ``net conservation gain'' under the ESA, and the policy is inconsistent with current Executive branch policy. Except as otherwise specified, all policies or guidance documents that were superseded by ESA-CMP are reinstated.

Federal Register, Volume 83 Issue 146 (Monday, July 30, 2018) 
[Federal Register Volume 83, Number 146 (Monday, July 30, 2018)]
[Rules and Regulations]
[Pages 36469-36472]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-16171]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Chapter I

[Docket No. FWS-HQ-ES-2015-0165; FXES11140900000-178; FF09E33000]


Endangered and Threatened Wildlife and Plants; Endangered Species 
Act Compensatory Mitigation Policy

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Policy; withdrawal.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce we 
are withdrawing the Endangered Species Act (ESA) Compensatory 
Mitigation Policy, published December 27, 2016 (ESA-CMP). In our 
document of November 6, 2017 we requested additional public comments 
regarding the policy's overall mitigation planning goal of net 
conservation gain. We are now withdrawing this policy. The Service does 
not have authority to require ``net conservation gain'' under the ESA, 
and the policy is inconsistent with current Executive branch policy. 
Except as otherwise specified, all policies or guidance documents that 
were superseded by ESA-CMP are reinstated.

DATES: Withdrawal effective on July 30, 2018.

ADDRESSES: Comments and materials received, as well as supporting 
documentation, are available on the internet at http://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.

SUPPLEMENTARY INFORMATION: The ESA-CMP (81 FR 95316, December 27, 2016) 
was developed to ensure consistency with existing directives in effect 
at the time of issuance, including former President Obama's Memorandum 
on Mitigating Impacts on Natural Resources From Development and 
Encouraging Related Private Investment (November 3, 2015). Under the 
memorandum, all Federal mitigation policies were directed to clearly 
set a net-benefit goal or, at minimum, a no-net-loss goal for natural 
resources, wherever doing so is allowed by existing statutory authority 
and is consistent with agency mission and established natural resource 
objectives. The Presidential Memorandum was subsequently rescinded by 
Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth'' (March 28, 2017).
    The ESA-CMP also described its consistency with the Secretary of 
the Interior's Order 3330 on Improving Mitigation Policies and 
Practices of the Department of the Interior (October 31, 2013), which 
established a Department-wide mitigation strategy to ensure consistency 
and efficiency in the review and permitting of infrastructure-
development projects and in conserving natural and cultural resources. 
The Secretary's Order was subsequently revoked by Secretary of the 
Interior's Order 3349 on American Energy Independence (March 29, 2017). 
It directed Department of the Interior bureaus to reexamine mitigation 
policies and practices to better balance conservation strategies and 
policies with job creation for American families.
    In light of the revocation of the 2015 Presidential Memorandum and 
Secretary's Order 3330, on November 6, 2017, the Service requested 
comment on the ESA-CMP, along with the Service-Wide Mitigation Policy 
(81 FR 83440, November 21, 2016), specifically ``regarding whether to 
retain or remove net conservation gain as a mitigation planning goal 
within our mitigation policies.'' Mitigation Policies of the U.S. Fish 
and Wildlife Service; Request for Comment (82 FR 51382, 51383, November 
6, 2017). The comment period for this request ended on January 5, 2018.
    Under Supreme Court precedent, the Takings Clause of the Fifth 
Amendment of the United States Constitution limits the ability of 
government to require monetary exactions as a condition of permitting 
private activities, particularly private activities on private 
property. In Koontz v. St. Johns River Water Management District, 570 
U.S. 595 (2013), the Supreme Court held that a proposal to fund offsite 
mitigation proposed by the State of Florida as a condition of granting 
a land-use permit must satisfy the test established in Nollan v. 
California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City 
of Tigard, 512 U.S. 374 (1994). Specifically, ``a unit of government 
may not condition the approval of a land-use permit on the owner's 
relinquishment of a portion of his property unless there is a `nexus' 
and `rough proportionality' between the government's demand and the 
effects of the proposed land use.'' Id. at 599. Compensatory mitigation 
raises serious questions of whether there is a sufficient nexus between 
the potential harm and the proposed remedy to satisfy constitutional 
muster.
    Further, because by definition compensatory mitigation does not 
directly avoid or minimize the anticipated harm, its application is 
particularly ripe for abuse. At times the nexus between a proposed 
undertaking and compensatory mitigation requirements is far from clear. 
These concerns are particularly acute when coupled with a net 
conservation gain goal, which necessarily seeks to go beyond mitigating 
actual or anticipated harm to forcing participants to pay to address 
harms they, by definition, did not cause.
    In light of the change in national policy reflected in Executive 
Order

[[Page 36470]]

13783 and Secretary's Order 3349, the comments received by the Service, 
and concerns regarding the legal and policy implications of a net 
conservation gain goal, the Service has concluded that it is no longer 
appropriate to retain a net conservation gain standard in the Service's 
overall mitigation planning goal within the ESA-CMP. Because the net 
conservation gain standard is so prevalent throughout the ESA-CMP, the 
Service is implementing this conclusion by withdrawing it.

Summary of Comments and Responses

    Executive Order 13783--``Promoting Energy Independence and Economic 
Growth'' (March 28, 2017)--rescinded the Presidential Memorandum on 
Mitigating Impacts on Natural Resources from Development and 
Encouraging Related Private Investment. The Secretary of the Interior 
subsequently issued Secretarial Order 3349 on American Energy 
Independence (March 29, 2017), which directed Department of the 
Interior (DOI) bureaus to reexamine mitigation policies and practices 
to better balance conservation strategies and policies with job 
creation for American families. Pursuant to Secretarial Order 3349, we 
published a notice on November 6, 2017 (82 FR 51382) requesting 
additional public comments specifically addressing the advisability of 
retaining or removing references to net conservation gain as a 
mitigation planning goal within our mitigation policies. In addition, 
in carrying out Executive Order 13777, ``Enforcing the Regulatory 
Reform Agenda,'' DOI published a document with the title ``Regulatory 
Reform'' in the Federal Register of June 22, 2017 (82 FR 28429). The 
document requested public comment on how DOI can improve implementation 
of regulatory reform initiatives and policies and identify regulations 
for repeal, replacement, or modification. This notice addresses 
comments that DOI has received in response to the regulatory reform 
docket that relates to the Service's use of mitigation.
    During the combined comment periods, for the ESA-CMP we received 
approximately 335 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 and final 2016 ESA-CMP, to those that provided 
extensive comments and information supporting or opposing the draft and 
final 2016 ESA-CMP.
    We considered all of the comments we received in the comment period 
beginning November 6, 2017 (82 FR 51382), and following the DOI's 
``Regulatory Reform'' Federal Register announcement (June 22, 2017, 82 
FR 28429); we respond to the substantive comments below.

A. Authority To Include Net Conservation Gain or No Net Loss Under the 
ESA

    Comment (1): One commenter stated there were constitutional limits 
on requiring mitigation, referencing the Koontz v. St. Johns River 
Water Management District case decided by the U.S. Supreme Court, 570 
U.S. 595 (2013). This commenter noted that any compensatory mitigation 
measures must have an essential nexus with the proposed impacts and be 
roughly proportional, or have a reasonable relationship between the 
permit conditions required and the impacts of the proposed development 
being addressed by those permit conditions.
    Response: The Service agrees that the Koontz case, as well as 
predecessor cases including, but not limited to, Nollan v. California 
Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 
512 U.S. 374 (1994), raise serious constitutional concerns about the 
viability of some elements of compensatory-mitigation programs. These 
concerns are particularly acute for offsite compensatory-mitigation 
programs and programs that seek a net conservation gain. Offsite 
compensatory-mitigation programs raise concerns regarding an 
appropriate nexus between the anticipated impact and the mitigation 
requirement. As mitigation moves further away from the direct impacts 
of a project, the risk that the connection between required 
compensation and the initial project becomes more attenuated increases. 
Further, by seeking to err on the side of mitigating above and beyond 
the impacts of the specific project at issue, the net conservation gain 
standard raises inherent concerns about proportionality, as well as the 
appropriate nexus between project impacts and mitigation methods, 
particularly where mitigation is in essence being used to rectify past, 
unrelated harms. We, like all agencies, must implement our authorities 
consistent with any applicable case law as appropriate. Consideration 
of the Constitutional standard set forth in Koontz is one reason, 
though not the only reason, that the Service is withdrawing its 
previous Mitigation Policy and ESA-CMP. In light of the Koontz case and 
any other relevant court decisions, the Service, in using its previous 
guidance (e.g., 2003 guidance on the establishment, use, and operation 
of conservation banks (68 FR 24753, May 8, 2003) and 2008 recovery 
crediting guidance (73 FR 44761, July 31, 2008)), will make sure that 
any statutorily authorized mitigation measures will have a clear 
connection (i.e., have an essential nexus) and be commensurate (i.e., 
have rough proportionality) to the impact of the project or action 
under consideration.
    Comment (2): Many commenters addressed the mitigation planning goal 
of improving (i.e., a net gain) or, at minimum, maintaining (i.e., no 
net loss) the current status of affected resources. A number of 
commenters supported the goal while a number of commenters opposed the 
inclusion of a net conservation gain. Of commenters opposed to net 
conservation gain, their specific reasons included:
    (a) The Service lacks the statutory authority to implement the net 
conservation gain goal for mitigation planning;
    (b) the net conservation gain goal imposes a new standard for 
mitigation and that mitigation requirements should be commensurate with 
the level of impacts;
    (c) concern about the costs associated with achieving net 
conservation gain;
    (d) questions about the ability to achieve net conservation gain 
and how it would be measured;
    (e) the ESA-CMP does not provide the methodology to assess or 
measure the net conservation gain; and
    (f) net conservation gain is incompatible with the standards of ESA 
sections 7 and 10.
    Also, several commenters asserted that a mitigation planning goal 
of no net loss is inconsistent with the ESA and exceeds our authorities 
under the ESA.
    Response: The ESA requires neither ``net conservation benefit'' nor 
``no net loss,'' and the Service has not previous required a ``net 
benefit'' nor ``no net loss'' while implementing the ESA. Under the 
ESA, the standard for section 7 is that a ``Federal agency shall, in 
consultation with and with the assistance of the Secretary, insure that 
any action . . . is not likely to jeopardize the continued existence of 
any endangered species or threatened species or result in the 
destruction or adverse modification of habitat.'' (Sec.  7(a)(2)); 
under section 10 the requirement is ``to the maximum extent 
practicable, minimize and mitigate the impacts of such taking'' (Sec.  
10(a)(2)(B)(ii)). As one court has

[[Page 36471]]

noted, ``[t]he words `maximum extent practicable' signify that the 
applicant may do something less than fully minimize and mitigate the 
impacts of the take where to do more would not be practicable. 
Moreover, the statutory language does not suggest that an applicant 
must ever do more than mitigate the effect of its take of species.'' 
National Wildlife Federation v. Norton, 306 F. Supp. 2d 920, 928 (E.D. 
Cal. 2004); see also Union Neighbors United, Inc. v. Jewell, 831 F.3d 
564 (D.C. Cir. 2016) (holding that the obligation to minimize and 
mitigate to the maximum extent practicable was satisfied by a plan that 
the Service found to fully offset the impact of the proposed taking). 
Since what is ``practicable'' may not fully offset proposed take, the 
``maximum extent practicable'' standard is inconsistent with both a 
general net conservation gain and no-net-loss mitigation objective. 
Nothing in the ESA requires that the Service apply a net conservation 
gain or no net loss standard.
    Those commenters supporting the goal generally asserted, among 
other points, that the Service has the authority to require 
compensatory mitigation, found the measures to be clear, and thought 
the policy encouraged consistent implementation. While we appreciate 
these comments, for the reasons described above, we are not persuaded.
    As noted above, because the concepts of ``net conservation gain'' 
and ``no net loss'' were central to and embedded throughout the 
policies, modifying the policies would likely have caused significant 
confusion. This fact, together with the more recently issued Executive 
and Secretarial Orders that questioned ``net gain,'' lead to our 
decision here to withdraw the ESA-CMP.

B. Landscape-Scale Approach

    Comment (3): Several commenters described their concerns with the 
implications of the ESA-CMP's landscape-scale approach including:
    (a) There is no statutory authority for taking a landscape-scale 
approach;
    (b) Including a landscape-scale approach would lead to the Service 
seeking mitigation for impacts beyond a project under review, including 
impacts that happened in the past or in unrelated locations;
    (c) A general concern that a landscape-scale approach would mean 
Federal overreach, including disregard for the plans, processes, and 
resource interests of States, Tribes, and local governments.
    Response: We agree with commenters that proponents' and action 
agencies' responsibilities include the provisions of relevant 
authorities and that those responsibilities do not extend to impacts 
unrelated to their action. Requiring mitigation to impacts unrelated to 
a proponent's action would likely conflict with the ``essential nexus'' 
required under Koontz for property development (see Comment 1 above). 
Accordingly, any effort to apply a landscape-scale approach to 
mitigation must ensure that there is an essential nexus between the 
proposed activity and the contemplated mitigation and that mitigation 
is not being imposed to correct for past impacts by other actors.

C. Authority To Include Candidate or At-Risk Species

    Comment (4): Several commenters stated that the Service has no 
statutory authority under the ESA to include candidate or at-risk 
species in compensatory-mitigation mechanisms.
    Response: The commenter is correct that the Service cannot require 
the inclusion of compensatory mitigation for impacts to at-risk and 
candidate species. Including candidate or other at-risk species in 
mitigation would be voluntary on the part of the Federal agency or 
applicant, which may, if the species is listed, streamline future 
reinitiation of consultation or amendments to habitat conservation 
plans (HCPs). Under section 10 of the ESA, although the applicant 
voluntarily develops its HCPs in consultation with the Service, the 
applicant ultimately decides which candidate or non-listed at-risk 
species it desires to include in its HCP. Many applicants voluntarily 
include at-risk species in their HCPs to receive ``no surprises'' 
assurances and preclude the need to amend the associated incidental 
take permit, should the species become listed in the future. 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. Furthermore, applicants may include candidate or other at-
risk species to address State or other local requirements (e.g., 
California's Natural Community Conservation Planning Act). But in all 
cases, considerations of non-ESA-listed species are voluntary on the 
part of the Federal agency or applicant.
National Environmental Policy Act (NEPA)
    We have analyzed the withdrawal of 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 that are of an administrative, financial, 
legal, technical, or procedural nature, or whose environmental effects 
are too broad, speculative, or conjectural to lend themselves to 
meaningful analysis and will later be subject to the NEPA process, 
either collectively or case-by-case may be categorically excluded under 
NEPA (43 CFR 46.210(i)). We have determined that a categorical 
exclusion applies to withdrawing this policy.
Paperwork Reduction Act of 1995
    This policy withdrawal 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 March 31, 2019. 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 withdrawing this policy. Our intent 
with withdrawing these policies is to reduce confusion of mitigation 
programs, projects, and measures, including those taken on Tribal 
lands. We will work with Tribes as applicants proposing mitigation as 
part of proposed actions and with Tribes as mitigation sponsors.

Authority

    The multiple authorities for this action include the: Endangered 
Species

[[Page 36472]]

Act of 1973, as amended (16 U.S.C. 1531 et seq.); Fish and Wildlife 
Coordination Act, as amended, (16 U.S.C. 661-667(e)); and National 
Environmental Policy Act (42 U.S.C. 4371 et seq.).

    Dated: July 24, 2018.
Gregory J. Sheehan,
Principal Deputy Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-16171 Filed 7-27-18; 8:45 am]
 BILLING CODE 4333-15-P

Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 36469 for individuals with disabilities remain are withdrawing the Endangered Independence (March 29, 2017). It available; and (iii) interoperability and Species Act (ESA) Compensatory directed Department of the Interior compatibility with an enumerated list of Mitigation Policy, published December bureaus to reexamine mitigation applications and functionalities 27, 2016 (ESA–CMP). In our document policies and practices to better balance determined to be key to consumers and of November 6, 2017 we requested conservation strategies and policies competitors. One replacement service additional public comments regarding with job creation for American families. must satisfy all the criteria to retain the policy’s overall mitigation planning In light of the revocation of the 2015 eligibility for automatic grant. The goal of net conservation gain. We are Presidential Memorandum and Commission also determined that now withdrawing this policy. The Secretary’s Order 3330, on November 6, information about the price of the legacy Service does not have authority to 2017, the Service requested comment on service and the proposed replacement require ‘‘net conservation gain’’ under the ESA–CMP, along with the Service- service should be provided as part of the the ESA, and the policy is inconsistent Wide Mitigation Policy (81 FR 83440, application. To reduce burdens on with current Executive branch policy. November 21, 2016), specifically carriers, the Commission (1) adopted a Except as otherwise specified, all ‘‘regarding whether to retain or remove more streamlined approach for legacy policies or guidance documents that net conservation gain as a mitigation voice discontinuances involving were superseded by ESA–CMP are planning goal within our mitigation services that are substantially similar to reinstated. policies.’’ Mitigation Policies of the U.S. those for which a Section 214 Fish and Wildlife Service; Request for DATES: Withdrawal effective on July 30, Comment (82 FR 51382, 51383, discontinuance meeting the adequate 2018. replacement criteria has previously been November 6, 2017). The comment approved, and (2) now allows Section ADDRESSES: Comments and materials period for this request ended on January 214 discontinuance applications to be received, as well as supporting 5, 2018. eligible for automatic grant if the documentation, are available on the Under Supreme Court precedent, the applicant seeks to discontinue a legacy internet at http://www.regulations.gov at Takings Clause of the Fifth Amendment voice service operating at speeds lower Docket Number FWS–HQ–ES–2015– of the United States Constitution limits than 1.544 Mbps that either has zero 0165. the ability of government to require customers in the relevant service area FOR FURTHER INFORMATION CONTACT: monetary exactions as a condition of and no requests for service in the last 30 Craig Aubrey, U.S. Fish and Wildlife permitting private activities, days, or if the applicant plans to Service, Division of Environmental particularly private activities on private grandfather existing customers of the Review, 5275 Leesburg Pike, Falls property. In Koontz v. St. Johns River service while ceasing to accept new Church, VA 22041–3803, telephone Water Management District, 570 U.S. 595 (2013), the Supreme Court held that customers. The Commission estimates 703–358–2442. a proposal to fund offsite mitigation that there will be five respondents SUPPLEMENTARY INFORMATION: The ESA– proposed by the State of Florida as a submitting 25 applications/responses CMP (81 FR 95316, December 27, 2016) condition of granting a land-use permit related to these revisions. The was developed to ensure consistency must satisfy the test established in Commission also estimates that these with existing directives in effect at the Nollan v. California Coastal revisions will result in a total of 1,575 time of issuance, including former Commission, 483 U.S. 825 (1987), and annual burden hours and a total annual President Obama’s Memorandum on Dolan v. City of Tigard, 512 U.S. 374 cost of $27,900. The Commission Mitigating Impacts on Natural Resources (1994). Specifically, ‘‘a unit of estimates that the total annual burden From Development and Encouraging government may not condition the and annual cost of the entire collection, Related Private Investment (November approval of a land-use permit on the as revised, is 1,923 and $27,900, 3, 2015). Under the memorandum, all owner’s relinquishment of a portion of respectively. Federal mitigation policies were his property unless there is a ‘nexus’ Federal Communications Commission. directed to clearly set a net-benefit goal and ‘rough proportionality’ between the Marlene Dortch, or, at minimum, a no-net-loss goal for government’s demand and the effects of Secretary, Office of the Secretary. natural resources, wherever doing so is the proposed land use.’’ Id. at 599. [FR Doc. 2018–16198 Filed 7–27–18; 8:45 am] allowed by existing statutory authority Compensatory mitigation raises serious and is consistent with agency mission questions of whether there is a sufficient BILLING CODE 6712–01–P and established natural resource nexus between the potential harm and objectives. The Presidential the proposed remedy to satisfy Memorandum was subsequently constitutional muster. DEPARTMENT OF THE INTERIOR rescinded by Executive Order 13783, Further, because by definition Fish and Wildlife Service ‘‘Promoting Energy Independence and compensatory mitigation does not Economic Growth’’ (March 28, 2017). directly avoid or minimize the 50 CFR Chapter I The ESA–CMP also described its anticipated harm, its application is consistency with the Secretary of the particularly ripe for abuse. At times the [Docket No. FWS–HQ–ES–2015–0165; Interior’s Order 3330 on Improving nexus between a proposed undertaking FXES11140900000–178; FF09E33000] Mitigation Policies and Practices of the and compensatory mitigation Department of the Interior (October 31, requirements is far from clear. These Endangered and Threatened Wildlife 2013), which established a Department- concerns are particularly acute when and Plants; Endangered Species Act wide mitigation strategy to ensure coupled with a net conservation gain Compensatory Mitigation Policy consistency and efficiency in the review daltland on DSKBBV9HB2PROD with RULES goal, which necessarily seeks to go AGENCY: Fish and Wildlife Service, and permitting of infrastructure- beyond mitigating actual or anticipated Interior. development projects and in conserving harm to forcing participants to pay to ACTION: Policy; withdrawal. natural and cultural resources. The address harms they, by definition, did Secretary’s Order was subsequently not cause. SUMMARY: We, the U.S. Fish and revoked by Secretary of the Interior’s In light of the change in national Wildlife Service (Service), announce we Order 3349 on American Energy policy reflected in Executive Order VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 E:\FR\FM\30JYR1.SGM 30JYR1

36470 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 13783 and Secretary’s Order 3349, the supporting or opposing the draft and Policy and ESA–CMP. In light of the comments received by the Service, and final 2016 ESA–CMP. Koontz case and any other relevant concerns regarding the legal and policy We considered all of the comments court decisions, the Service, in using its implications of a net conservation gain we received in the comment period previous guidance (e.g., 2003 guidance goal, the Service has concluded that it beginning November 6, 2017 (82 FR on the establishment, use, and operation is no longer appropriate to retain a net 51382), and following the DOI’s of conservation banks (68 FR 24753, conservation gain standard in the ‘‘Regulatory Reform’’ Federal Register May 8, 2003) and 2008 recovery Service’s overall mitigation planning announcement (June 22, 2017, 82 FR crediting guidance (73 FR 44761, July goal within the ESA–CMP. Because the 28429); we respond to the substantive 31, 2008)), will make sure that any net conservation gain standard is so comments below. statutorily authorized mitigation prevalent throughout the ESA–CMP, the A. Authority To Include Net measures will have a clear connection Service is implementing this conclusion Conservation Gain or No Net Loss (i.e., have an essential nexus) and be by withdrawing it. Under the ESA commensurate (i.e., have rough proportionality) to the impact of the Summary of Comments and Responses Comment (1): One commenter stated project or action under consideration. Executive Order 13783—‘‘Promoting there were constitutional limits on Comment (2): Many commenters requiring mitigation, referencing the addressed the mitigation planning goal Energy Independence and Economic Koontz v. St. Johns River Water of improving (i.e., a net gain) or, at Growth’’ (March 28, 2017)—rescinded Management District case decided by minimum, maintaining (i.e., no net loss) the Presidential Memorandum on the U.S. Supreme Court, 570 U.S. 595 the current status of affected resources. Mitigating Impacts on Natural Resources (2013). This commenter noted that any A number of commenters supported the from Development and Encouraging compensatory mitigation measures must goal while a number of commenters Related Private Investment. The have an essential nexus with the opposed the inclusion of a net Secretary of the Interior subsequently proposed impacts and be roughly conservation gain. Of commenters issued Secretarial Order 3349 on proportional, or have a reasonable opposed to net conservation gain, their American Energy Independence (March relationship between the permit specific reasons included: 29, 2017), which directed Department of conditions required and the impacts of the Interior (DOI) bureaus to reexamine (a) The Service lacks the statutory the proposed development being authority to implement the net mitigation policies and practices to addressed by those permit conditions. better balance conservation strategies conservation gain goal for mitigation Response: The Service agrees that the planning; and policies with job creation for Koontz case, as well as predecessor American families. Pursuant to (b) the net conservation gain goal cases including, but not limited to, imposes a new standard for mitigation Secretarial Order 3349, we published a Nollan v. California Coastal notice on November 6, 2017 (82 FR and that mitigation requirements should Commission, 483 U.S. 825 (1987), and be commensurate with the level of 51382) requesting additional public Dolan v. City of Tigard, 512 U.S. 374 comments specifically addressing the impacts; (1994), raise serious constitutional (c) concern about the costs associated advisability of retaining or removing concerns about the viability of some with achieving net conservation gain; references to net conservation gain as a elements of compensatory-mitigation (d) questions about the ability to mitigation planning goal within our programs. These concerns are achieve net conservation gain and how mitigation policies. In addition, in particularly acute for offsite it would be measured; carrying out Executive Order 13777, compensatory-mitigation programs and (e) the ESA–CMP does not provide the ‘‘Enforcing the Regulatory Reform programs that seek a net conservation methodology to assess or measure the Agenda,’’ DOI published a document gain. Offsite compensatory-mitigation net conservation gain; and with the title ‘‘Regulatory Reform’’ in programs raise concerns regarding an (f) net conservation gain is the Federal Register of June 22, 2017 appropriate nexus between the incompatible with the standards of ESA (82 FR 28429). The document requested anticipated impact and the mitigation sections 7 and 10. public comment on how DOI can requirement. As mitigation moves Also, several commenters asserted improve implementation of regulatory further away from the direct impacts of that a mitigation planning goal of no net reform initiatives and policies and a project, the risk that the connection loss is inconsistent with the ESA and identify regulations for repeal, between required compensation and the exceeds our authorities under the ESA. replacement, or modification. This initial project becomes more attenuated Response: The ESA requires neither notice addresses comments that DOI has increases. Further, by seeking to err on ‘‘net conservation benefit’’ nor ‘‘no net received in response to the regulatory the side of mitigating above and beyond loss,’’ and the Service has not previous reform docket that relates to the the impacts of the specific project at required a ‘‘net benefit’’ nor ‘‘no net Service’s use of mitigation. issue, the net conservation gain loss’’ while implementing the ESA. During the combined comment standard raises inherent concerns about Under the ESA, the standard for section periods, for the ESA–CMP we received proportionality, as well as the 7 is that a ‘‘Federal agency shall, in approximately 335 public comment appropriate nexus between project consultation with and with the letters, including comments from impacts and mitigation methods, assistance of the Secretary, insure that Federal, State, and local government particularly where mitigation is in any action . . . is not likely to entities; industry; trade associations; essence being used to rectify past, jeopardize the continued existence of conservation organizations; unrelated harms. We, like all agencies, any endangered species or threatened nongovernmental organizations; private must implement our authorities species or result in the destruction or daltland on DSKBBV9HB2PROD with RULES citizens; and others. The range of consistent with any applicable case law adverse modification of habitat.’’ comments varied from those that as appropriate. Consideration of the (§ 7(a)(2)); under section 10 the provided general statements of support Constitutional standard set forth in requirement is ‘‘to the maximum extent or opposition to the draft and final 2016 Koontz is one reason, though not the practicable, minimize and mitigate the ESA–CMP, to those that provided only reason, that the Service is impacts of such taking’’ extensive comments and information withdrawing its previous Mitigation (§ 10(a)(2)(B)(ii)). As one court has VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 E:\FR\FM\30JYR1.SGM 30JYR1

Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 36471 noted, ‘‘[t]he words ‘maximum extent responsibilities include the provisions Implementing the Procedural Provisions practicable’ signify that the applicant of relevant authorities and that those of NEPA (40 CFR parts 1500–1508), and may do something less than fully responsibilities do not extend to the Department of the Interior’s NEPA minimize and mitigate the impacts of impacts unrelated to their action. procedures (516 DM 2 and 8; 43 CFR the take where to do more would not be Requiring mitigation to impacts part 46). Issuance of policies, directives, practicable. Moreover, the statutory unrelated to a proponent’s action would regulations, and guidelines that are of language does not suggest that an likely conflict with the ‘‘essential an administrative, financial, legal, applicant must ever do more than nexus’’ required under Koontz for technical, or procedural nature, or mitigate the effect of its take of species.’’ property development (see Comment 1 whose environmental effects are too National Wildlife Federation v. Norton, above). Accordingly, any effort to apply broad, speculative, or conjectural to 306 F. Supp. 2d 920, 928 (E.D. Cal. a landscape-scale approach to lend themselves to meaningful analysis 2004); see also Union Neighbors United, mitigation must ensure that there is an and will later be subject to the NEPA Inc. v. Jewell, 831 F.3d 564 (D.C. Cir. essential nexus between the proposed process, either collectively or case-by- 2016) (holding that the obligation to activity and the contemplated case may be categorically excluded minimize and mitigate to the maximum mitigation and that mitigation is not under NEPA (43 CFR 46.210(i)). We extent practicable was satisfied by a being imposed to correct for past have determined that a categorical plan that the Service found to fully impacts by other actors. exclusion applies to withdrawing this offset the impact of the proposed policy. C. Authority To Include Candidate or taking). Since what is ‘‘practicable’’ may At-Risk Species Paperwork Reduction Act of 1995 not fully offset proposed take, the ‘‘maximum extent practicable’’ standard Comment (4): Several commenters This policy withdrawal does not is inconsistent with both a general net stated that the Service has no statutory contain any new collections of conservation gain and no-net-loss authority under the ESA to include information that require approval by the mitigation objective. Nothing in the ESA candidate or at-risk species in Office of Management and Budget requires that the Service apply a net compensatory-mitigation mechanisms. (OMB) under the Paperwork Reduction conservation gain or no net loss Response: The commenter is correct Act of 1995 (44 U.S.C. 3501 et seq.). standard. that the Service cannot require the OMB has reviewed and approved the Those commenters supporting the inclusion of compensatory mitigation information collection requirements for goal generally asserted, among other for impacts to at-risk and candidate applications for incidental take permits, points, that the Service has the authority species. Including candidate or other at- annual reports, and notifications of to require compensatory mitigation, risk species in mitigation would be incidental take for native endangered found the measures to be clear, and voluntary on the part of the Federal and threatened species for safe harbor thought the policy encouraged agency or applicant, which may, if the agreements, candidate conservation consistent implementation. While we species is listed, streamline future agreements with assurances, and habitat appreciate these comments, for the reinitiation of consultation or conservation plans under OMB Control reasons described above, we are not amendments to habitat conservation Number 1018–0094, which expires on persuaded. plans (HCPs). Under section 10 of the March 31, 2019. We may not conduct or As noted above, because the concepts ESA, although the applicant voluntarily sponsor and a person is not required to of ‘‘net conservation gain’’ and ‘‘no net develops its HCPs in consultation with respond to a collection of information loss’’ were central to and embedded the Service, the applicant ultimately unless it displays a currently valid OMB throughout the policies, modifying the decides which candidate or non-listed control number. policies would likely have caused at-risk species it desires to include in its HCP. Many applicants voluntarily Government-to-Government significant confusion. This fact, together Relationship With Tribes with the more recently issued Executive include at-risk species in their HCPs to and Secretarial Orders that questioned receive ‘‘no surprises’’ assurances and In accordance with the President’s ‘‘net gain,’’ lead to our decision here to preclude the need to amend the memorandum of April 29, 1994, withdraw the ESA–CMP. associated incidental take permit, ‘‘Government-to-Government Relations should the species become listed in the with Native American Tribal B. Landscape-Scale Approach future. This is consistent with ESA goals Governments’’ (59 FR 22951), Executive Comment (3): Several commenters of recovering listed species and, ideally, Order 13175 ‘‘Consultation and described their concerns with the avoiding the need to list species because Coordination with Indian Tribal implications of the ESA–CMP’s threats to them have been addressed. Governments,’’ and the Department of landscape-scale approach including: Furthermore, applicants may include the Interior Manual at 512 DM 2, we (a) There is no statutory authority for candidate or other at-risk species to have considered possible effects on taking a landscape-scale approach; address State or other local federally recognized Indian tribes and (b) Including a landscape-scale requirements (e.g., California’s Natural have determined that there are no approach would lead to the Service Community Conservation Planning Act). potential adverse effects of withdrawing seeking mitigation for impacts beyond a But in all cases, considerations of non- this policy. Our intent with project under review, including impacts ESA-listed species are voluntary on the withdrawing these policies is to reduce that happened in the past or in part of the Federal agency or applicant. confusion of mitigation programs, unrelated locations; projects, and measures, including those (c) A general concern that a National Environmental Policy Act taken on Tribal lands. We will work (NEPA) daltland on DSKBBV9HB2PROD with RULES landscape-scale approach would mean with Tribes as applicants proposing Federal overreach, including disregard We have analyzed the withdrawal of mitigation as part of proposed actions for the plans, processes, and resource this policy in accordance with the and with Tribes as mitigation sponsors. interests of States, Tribes, and local criteria of the National Environmental governments. Policy Act, as amended (NEPA) (42 Authority Response: We agree with commenters U.S.C. 4332(c)), the Council on The multiple authorities for this that proponents’ and action agencies’ Environmental Quality’s Regulations for action include the: Endangered Species VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 E:\FR\FM\30JYR1.SGM 30JYR1

36472 Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations Act of 1973, as amended (16 U.S.C. 1531 November 21, 2016) was developed to proposed by the State of Florida as a et seq.); Fish and Wildlife Coordination ensure consistency with directives in condition of granting a land-use permit Act, as amended, (16 U.S.C. 661– effect at the time of issuance, including must satisfy the test established in 667(e)); and National Environmental former President Obama’s Memorandum Nollan v. California Coastal Policy Act (42 U.S.C. 4371 et seq.). on Mitigating Impacts on Natural Commission, 483 U.S. 825 (1987) and Dated: July 24, 2018. Resources From Development and Dolan v. City of Tigard, 512 U.S. 374 Gregory J. Sheehan, Encouraging Related Private Investment (1994). Specifically, ‘‘a unit of (November 3, 2015). Under the government may not condition the Principal Deputy Director, U.S. Fish and Wildlife Service. memorandum, all Federal mitigation approval of a land-use permit on the policies were directed to clearly set a owner’s relinquishment of a portion of [FR Doc. 2018–16171 Filed 7–27–18; 8:45 am] net-benefit goal or, at minimum, a no- his property unless there is a ‘nexus’ BILLING CODE 4333–15–P net-loss goal for natural resources, and ‘rough proportionality’ between the wherever doing so is allowed by government’s demand and the effects of existing statutory authority and is the proposed land use.’’ Id. at 599. DEPARTMENT OF THE INTERIOR Compensatory mitigation consistent with agency mission and Fish and Wildlife Service established natural resource objectives. requirements in particular raise serious The Presidential Memorandum was questions of whether there is a sufficient 50 CFR Chapter I subsequently rescinded by Executive nexus between the potential harm and Order 13783, ‘‘Promoting Energy the proposed remedy to satisfy [Docket No. FWS–HQ–ES–2015–0126]; Independence and Economic Growth’’ constitutional muster. Further, because [FXHC11220900000–156–FF09E33000] (March 28, 2017). by definition compensatory mitigation The Mitigation Policy also described does not directly avoid or minimize the U.S. Fish and Wildlife Service its consistency with the Secretary of the anticipated harm, its application is Mitigation Policy Interior’s Order 3330 on Improving particularly ripe for abuse. These AGENCY: Fish and Wildlife Service, Mitigation Policies and Practices of the concerns are particularly acute when Interior. Department of the Interior (October 31, coupled with a net conservation gain ACTION: Policy; withdrawal. 2013), which established a Department- standard, which necessarily goes wide mitigation strategy to ensure beyond mitigating actual or anticipated SUMMARY: We, the U.S. Fish and consistency and efficiency in the review harm to forcing participants to pay to Wildlife Service (Service), announce we and permitting of infrastructure- address harms they, by definition, did are withdrawing the Mitigation Policy development projects and in conserving not cause. published November 21, 2016, which natural and cultural resources. The In light of the change in national guides Service recommendations on Secretary’s Order was subsequently policy reflected in Executive Order mitigating the adverse impacts of land revoked by Secretary of the Interior’s 13783 and Secretary’s Order 3349, the and water developments on fish, Order 3349 on American Energy comments received by the Service, and wildlife, plants, and their habitats. In Independence (March 29, 2017). It concerns regarding the legal and policy our document of November 6, 2017, we directed Department of the Interior implications of compensatory requested additional public comments bureaus to reexamine mitigation mitigation, particularly compensatory regarding this policy’s overall mitigation policies and practices to better balance mitigation with a net conservation gain planning goal of net conservation gain. conservation strategies and policies policy, the Service has concluded that it We are now withdrawing this policy as with job creation for American families. is no longer appropriate to retain it is no longer appropriate to retain the In light of the revocation of the 2015 references to or mandate a net ‘‘net conservation gain’’ standard Presidential Memorandum and conservation gain standard in the throughout various Service-related Secretary’s Order 3330, on November 6, Service’s overall mitigation planning activities and is inconsistent with 2017, the Service requested comment on goal within each document. Because the current Executive branch policy. Until the Mitigation Policy, as well as the net conservation gain standard is so further notice, all policies that were Endangered Species Act— prevalent throughout the Mitigation superseded by the 2016 Mitigation Compensatory Mitigation Policy (81 FR Policy, the Service is implementing this Policy are reinstated, including the Fish 95316, December 27, 2016), specifically conclusion by withdrawing the and Wildlife Service Mitigation Policy ‘‘regarding whether to retain or remove Mitigation Policy. (46 FR 7644–7663) published in the net conservation gain as a mitigation Summary of Comments and Responses Federal Register on January 23, 1981. planning goal within our mitigation DATES: Withdrawal effective on July 30, policies.’’ Mitigation Policies of the U.S. Executive Order 13783—‘‘Promoting 2018. Fish and Wildlife Service; Request for Energy Independence and Economic Comment (82 FR 51382, 51383, Growth’’ (March 28, 2017)—rescinded ADDRESSES: Comments and materials November 6, 2017). The comment the Presidential Memorandum on received, as well as supporting Mitigating Impacts on Natural Resources period for this request ended on January documentation, are available on the from Development and Encouraging 5, 2018. internet at http://www.regulations.gov at Under Supreme Court precedent, the Related Private Investment. The Docket Number FWS–HQ–ES–2015– Takings Clause of the Fifth Amendment Secretary of the Interior subsequently 0126. of the United States Constitution limits issued Secretarial Order 3349 on FOR FURTHER INFORMATION CONTACT: the ability of government to require American Energy Independence (March Craig Aubrey, U.S. Fish and Wildlife monetary exactions as a condition of 29, 2017), which directed Department of daltland on DSKBBV9HB2PROD with RULES Service, Division of Environmental permitting private activities, the Interior (DOI) bureaus to reexamine Review, 5275 Leesburg Pike, Falls particularly private activities on private mitigation policies and practices to Church, VA 22041–3803, telephone property. In Koontz v. St. Johns River better balance conservation strategies 703–358–2442. Water Management District, 570 U.S. and policies with job creation for SUPPLEMENTARY INFORMATION: The 595 (2013), the Supreme Court held that American families. Pursuant to Mitigation Policy (81 FR 83440, a proposal to fund offsite mitigation Secretarial Order 3349, we published a VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 E:\FR\FM\30JYR1.SGM 30JYR1


Document Created: 2018-07-28 01:43:33
Document Modified: 2018-07-28 01:43:33
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionPolicy; withdrawal.
DatesWithdrawal effective on July 30, 2018.
ContactCraig Aubrey, U.S. Fish and Wildlife Service, Division of Environmental Review, 5275 Leesburg Pike, Falls Church, VA 22041-3803, telephone 703-358-2442.
FR Citation83 FR 36469 
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR