83 FR 36472 - U.S. Fish and Wildlife Service Mitigation Policy

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

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

Page Range		36472-36475
FR Document		2018-16172

We, the U.S. Fish and Wildlife Service (Service), announce we are withdrawing the Mitigation Policy published November 21, 2016, which guides Service recommendations on mitigating the adverse impacts of land and water developments on fish, wildlife, plants, and their habitats. In our document of November 6, 2017, we requested additional public comments regarding this policy's overall mitigation planning goal of net conservation gain. We are now withdrawing this policy as it is no longer appropriate to retain the ``net conservation gain'' standard throughout various Service-related activities and is inconsistent with current Executive branch policy. Until further notice, all policies that were superseded by the 2016 Mitigation Policy are reinstated, including the Fish and Wildlife Service Mitigation Policy (46 FR 7644-7663) published in the Federal Register on January 23, 1981.

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

[Federal Register Volume 83, Number 146 (Monday, July 30, 2018)]
[Rules and Regulations]
[Pages 36472-36475]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-16172]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Chapter I

[Docket No. FWS-HQ-ES-2015-0126]; [FXHC11220900000-156-FF09E33000]

U.S. Fish and Wildlife Service Mitigation Policy

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Policy; withdrawal.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce we
are withdrawing the Mitigation Policy published November 21, 2016,
which guides Service recommendations on mitigating the adverse impacts
of land and water developments on fish, wildlife, plants, and their
habitats. In our document of November 6, 2017, we requested additional
public comments regarding this policy's overall mitigation planning
goal of net conservation gain. We are now withdrawing this policy as it
is no longer appropriate to retain the ``net conservation gain''
standard throughout various Service-related activities and is
inconsistent with current Executive branch policy. Until further
notice, all policies that were superseded by the 2016 Mitigation Policy
are reinstated, including the Fish and Wildlife Service Mitigation
Policy (46 FR 7644-7663) published in the Federal Register on January
23, 1981.

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-2015-0126.

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 Mitigation Policy (81 FR 83440, November
21, 2016) was developed to ensure consistency with 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 Mitigation Policy 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 Mitigation Policy, as well as the Endangered Species
Act--Compensatory Mitigation Policy (81 FR 95316, December 27, 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 requirements in particular raise 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. These concerns are particularly acute when coupled with a
net conservation gain standard, which necessarily goes 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 13783 and Secretary's Order 3349, the comments received by the
Service, and concerns regarding the legal and policy implications of
compensatory mitigation, particularly compensatory mitigation with a
net conservation gain policy, the Service has concluded that it is no
longer appropriate to retain references to or mandate a net
conservation gain standard in the Service's overall mitigation planning
goal within each document. Because the net conservation gain standard
is so prevalent throughout the Mitigation Policy, the Service is
implementing this conclusion by withdrawing the Mitigation Policy.

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

[[Page 36473]]

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 Service-wide
Mitigation Policy we received approximately 427 comments from Federal,
State, and local government entities, industry, trade associations,
conservation organizations, nongovernmental organizations, private
citizens, and others. Two of those submissions transmitted the discrete
comments from an additional 1,756 citizens expressing support for the
Service's mitigation policy approach. The range of comments otherwise
varied from those that provided general statements of support or
opposition to the draft or final Policy, to those that provided
extensive comments and information supporting or opposing the draft or
final Policy, or specific aspects thereof. The majority of comments
submitted included detailed suggestions for revisions addressing major
concepts as well as editorial suggestions for specific wording or line
edits.
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. Policy Addresses Multiple Authorities

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 the Service's 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, a 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. In light of the Koontz case and any other
relevant court decisions, the Service, in using its previous policies
(e.g., 1981 Policy), 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): Several commenters addressed aspects of the Service's
authority under the Bald and Golden Eagle Protection Act (Eagle Act).
One commenter supported the acknowledgement that compensatory
mitigation for bald and golden eagles may include preservation of those
species' habitats and enhancing their prey base. The commenter noted
that existing regulations establishing a permit program for the non-
purposeful take of bald and golden eagles recognize these options but
that these options have not been used. One commenter stated the Service
was incorrect in stating in the proposed Policy: ``the statute and
implementing regulations allow the Service to require habitat
preservation and/or enhancement as compensatory mitigation for eagle
take.'' The commenter said that Congress has not exercised jurisdiction
over the habitats of eagles, meaning the Service lacks authority to
require mitigation for impacts to eagle habitats. One commenter
suggested the Policy should articulate whether compensatory mitigation
would be in addition to current requirements of a 1-for-1 take offset.
Response: We agree that the authority of the Eagle Act is limited,
and the Service has outlined its authority in its regulations (50 CFR
part 22). Nothing in the Eagle Act directly addresses eagle habitat, or
requires that the Service apply a net conservation gain standard.
Accordingly, the withdrawal of the 2016 Mitigation Policy and
reinstatement of the 1981 Mitigation Policy will not change our
authority under the Eagle Act.
Comment (3): Several commenters addressed the Service's authority
under the Migratory Bird Treaty Act (MBTA). One commenter said the
Service was incorrect in describing implied authority to permit
incidental take of migratory birds under the MBTA and noted that the
Service has no authority to require compensatory mitigation for
incidental take of migratory birds. Several commenters said that
mitigation for migratory birds exceeds MBTA authority and that the
Policy should exclude potential incidental impacts to migratory birds
under the MBTA until the Service establishes statutory or regulatory
authority to require landowners to obtain incidental take authorization
prior to undertaking otherwise lawful activities. They added that the
MBTA does not directly address mitigation or habitat impacts.
One commenter said the Service was incorrect in writing that the
Fish and Wildlife Conservation Act implicitly provided for mitigation
of impacts to migratory birds. The commenter said that the language
does not authorize the Service to engage in any management activities
associated with migratory birds, particularly over private parties,
only directing the Service to monitor and assess population trends and
species status of migratory nongame birds.
Response: DOI's Office of the Solicitor issued M-Opinion 37050, The
Migratory Bird Treaty Act Does Not Prohibit Incidental Take (M-
Opinion), on December 22, 2017, which concludes that the take of birds
resulting from an

[[Page 36474]]

activity is not prohibited by the MBTA when the underlying purpose of
that activity is not to take birds. In addition, the Service does not
have specific statutory authority pursuant to the MBTA to require
Federal action agencies and/or their permittees to provide compensatory
mitigation for unavoidable impacts to (loss of) migratory bird habitat
resulting from federally conducted or approved, authorized, or funded
projects or activities. Like the Eagle Act, the MBTA does not directly
protect habitat. When the Service authorizes otherwise prohibited
intentional take, however, it can make that authorization subject to
appropriate conditions, including non-compensatory mitigation, such as
measures to avoid, minimize, reduce, or rectify anticipated harm. In
addition, Executive Order (E.O.) 13186 directs Federal agencies
``taking actions that have, or are likely to have, a measurable
negative effect on migratory bird populations'' to sign a Memorandum of
Understanding with the Service ``that shall promote the conservation of
migratory bird populations.''
Comment (4): One commenter specifically questioned the treatment of
Natural Resource Damage Assessment actions conducted under the
Comprehensive Environmental Response, Compensation, and Liability Act,
Oil Pollution Act, and the Clean Water Act, stating that the
Presidential Memorandum on Mitigating Impacts on Natural Resources from
Development and Encouraging Related Private Investment, dated November
3, 2015, requires that separate guidance be developed for when
restoration banking or advance restoration would be appropriate.
Response: The Presidential Memorandum on Mitigation was rescinded
by Executive Order 13783, Promoting Energy Independence and Economic
Growth (March 28, 2017). Furthermore, when a release of hazardous
substance or oil injures natural resources subject to the natural
resource damage assessment and restoration trusteeship of States,
Tribes, or the Federal Government, appropriate restoration is
determined by the scope and scale of the injury and the nexus of the
restoration action to that specific injury.

B. Net Conservation Gain/No Net Loss

Comment (5): Many commenters addressed the Policy's 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 Policy does not provide the methodology to assess or
measure the net conservation gain.
(f) Net conservation gain is incompatible with the standards of the
ESA sections 7 and 10. One commenter asked that we clarify that the net
conservation gain goal does not modify or expand proponents'
obligations under ESA sections 7 or 10 permitting programs. One
commenter stated that the Policy's goal would have limited relevance to
section 10 decisions other than serving as an aspiration or goal for
negotiating conservation measures. One commenter asked that we specify
how the Policy's goal will be applied to processing incidental take
permit applications under section 10(a)(2)(B)(ii), especially for
projects predicted to directly kill listed species. This commenter
added that neither no net loss nor net gain is an appropriate goal
under section 10 if the goal implies that impacts at the individual
level will not be minimized to the maximum extent practicable.
Response: We agree with concerns expressed by commenters that the
Service generally lacks the statutory authority to implement ``net
conservation gain'' for mitigation planning. No statute within the
Service's purview mandates that the Service directly apply a net
conservation gain standard. For example, under the Endangered Species
Act (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 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 a 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 ``net conservation gain'' was central to and integrated
throughout the policies, in addition to the more recently issued 2017
Executive and Secretarial Orders, modifying these policies would likely
have caused even more confusion. Thus, we are withdrawing the 2016
Mitigation Policy, and restoring the policies and guidance that were
superseded by the 2016 policies.

C. Landscape-Scale Approach

Comment (6): Several commenters described their concerns with the
implications of the Policy's inclusion of a landscape-scale approach:
(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. They said
that meeting the standards of an applicable authority within the narrow
geographic scope of their project is the proponent's only
responsibility.
(c) General concern that a landscape-scale approach would mean
Federal overreach, including disregard for the

[[Page 36475]]

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.
Section 5 of the Mitigation Policy, ``Mitigation Framework,'' calls
for both consideration of a landscape-scale approach in addition to
``net conservation gain.'' Because net conservation gain is integral to
the policies, even though considerations of landscape-scale approaches
may be useful in some cases, withdrawing these policies will reduce
confusion over the net conservation gain goal. This notice does not
affect the Service authorities that already allow the flexibility to
consider landscape-scale approach. In some cases, taking the broader
ecological context of both impacts and mitigation opportunities into
account by applying a landscape-scale approach is an effective means of
implementing the Service's mission in a way that also benefits
proponents.
National Environmental Policy Act (NEPA)
We have analyzed the withdrawals 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 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. 2018-16172 Filed 7-27-18; 8:45 am]
BILLING CODE 4333-15-P

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

Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 36473

notice on November 6, 2017 (82 FR relationship between the permit stated the Service was incorrect in
51382), requesting additional public conditions required and the impacts of stating in the proposed Policy: ‘‘the
comments specifically addressing the the proposed development being statute and implementing regulations
advisability of retaining or removing addressed by those permit conditions. allow the Service to require habitat
references to net conservation gain as a Response: The Service agrees that the preservation and/or enhancement as
mitigation planning goal within our Koontz case, as well as predecessor compensatory mitigation for eagle take.’’
mitigation policies. In addition, in cases including, but not limited to, The commenter said that Congress has
carrying out Executive Order 13777, Nollan v. California Coastal not exercised jurisdiction over the
‘‘Enforcing the Regulatory Reform Commission, 483 U.S. 825 (1987), and habitats of eagles, meaning the Service
Agenda,’’ DOI published a document Dolan v. City of Tigard, 512 U.S. 374 lacks authority to require mitigation for
with the title ‘‘Regulatory Reform’’ in (1994), raise serious constitutional impacts to eagle habitats. One
the Federal Register of June 22, 2017 concerns about the viability of some commenter suggested the Policy should
(82 FR 28429). The document requested elements of the Service’s mitigation articulate whether compensatory
public comment on how DOI can programs. These concerns are mitigation would be in addition to
improve implementation of regulatory particularly acute for offsite current requirements of a 1-for-1 take
reform initiatives and policies and compensatory-mitigation programs and offset.
identify regulations for repeal, programs that seek a net conservation Response: We agree that the authority
replacement, or modification. This gain. Offsite compensatory-mitigation of the Eagle Act is limited, and the
notice addresses comments that DOI has programs raise concerns regarding an Service has outlined its authority in its
received in response to the regulatory appropriate nexus between the regulations (50 CFR part 22). Nothing in
reform docket that relates to the anticipated impact and the mitigation the Eagle Act directly addresses eagle
Service’s use of mitigation. requirement. As mitigation moves habitat, or requires that the Service
During the combined comment further away from the direct impacts of apply a net conservation gain standard.
periods, for the Service-wide Mitigation a project, the risk that the connection Accordingly, the withdrawal of the 2016
Policy we received approximately 427 between required compensation and the Mitigation Policy and reinstatement of
comments from Federal, State, and local initial project becomes more attenuated the 1981 Mitigation Policy will not
government entities, industry, trade increases. Further, by seeking to err on change our authority under the Eagle
associations, conservation the side of mitigating above and beyond Act.
organizations, nongovernmental the impacts of the specific project at Comment (3): Several commenters
organizations, private citizens, and issue, a net conservation gain standard addressed the Service’s authority under
others. Two of those submissions raises inherent concerns about the Migratory Bird Treaty Act (MBTA).
transmitted the discrete comments from proportionality, as well as the One commenter said the Service was
an additional 1,756 citizens expressing appropriate nexus between project incorrect in describing implied
support for the Service’s mitigation impacts and mitigation methods, authority to permit incidental take of
policy approach. The range of particularly where mitigation is in migratory birds under the MBTA and
comments otherwise varied from those essence being used to rectify past, noted that the Service has no authority
that provided general statements of unrelated harms. We, like all agencies, to require compensatory mitigation for
support or opposition to the draft or must implement our authorities incidental take of migratory birds.
final Policy, to those that provided consistent with any applicable case law Several commenters said that mitigation
extensive comments and information as appropriate. Consideration of the for migratory birds exceeds MBTA
supporting or opposing the draft or final Constitutional standard set forth in authority and that the Policy should
Policy, or specific aspects thereof. The Koontz is one reason, though not the exclude potential incidental impacts to
majority of comments submitted only reason, that the Service is migratory birds under the MBTA until
included detailed suggestions for withdrawing its previous Mitigation the Service establishes statutory or
revisions addressing major concepts as Policy. In light of the Koontz case and regulatory authority to require
well as editorial suggestions for specific any other relevant court decisions, the landowners to obtain incidental take
wording or line edits. Service, in using its previous policies authorization prior to undertaking
We considered all of the comments (e.g., 1981 Policy), will make sure that otherwise lawful activities. They added
we received in the comment period any statutorily authorized mitigation that the MBTA does not directly address
beginning November 6, 2017 (82 FR measures will have a clear connection mitigation or habitat impacts.
51382), and following the DOI’s (i.e., have an essential nexus) and be One commenter said the Service was
‘‘Regulatory Reform’’ Federal Register commensurate (i.e., have rough incorrect in writing that the Fish and
announcement (June 22, 2017, 82 FR proportionality) to the impact of the Wildlife Conservation Act implicitly
28429); we respond to the substantive project or action under consideration. provided for mitigation of impacts to
comments below. Comment (2): Several commenters migratory birds. The commenter said
addressed aspects of the Service’s that the language does not authorize the
A. Policy Addresses Multiple authority under the Bald and Golden Service to engage in any management
Authorities Eagle Protection Act (Eagle Act). One activities associated with migratory
Comment (1): One commenter stated commenter supported the birds, particularly over private parties,
there were constitutional limits on acknowledgement that compensatory only directing the Service to monitor
requiring mitigation, referencing the mitigation for bald and golden eagles and assess population trends and
Koontz v. St. Johns River Water may include preservation of those species status of migratory nongame
Management District case decided by
daltland on DSKBBV9HB2PROD with RULES

species’ habitats and enhancing their birds.
the U.S. Supreme Court, 570 U.S. 595 prey base. The commenter noted that Response: DOI’s Office of the Solicitor
(2013). This commenter noted that any existing regulations establishing a issued M-Opinion 37050, The Migratory
compensatory mitigation measures must permit program for the non-purposeful Bird Treaty Act Does Not Prohibit
have an essential nexus with the take of bald and golden eagles recognize Incidental Take (M-Opinion), on
proposed impacts and be roughly these options but that these options December 22, 2017, which concludes
proportional, or have a reasonable have not been used. One commenter that the take of birds resulting from an

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$Federal Register / Vol. 83, No. 146 / Monday, July 30, 2018 / Rules and Regulations 36475 plans, processes, and resource interests National Environmental Policy Act March 31, 2019. We may not conduct or of States, tribes, and local governments. (NEPA) sponsor and a person is not required to Response: We agree with commenters respond to a collection of information We have analyzed the withdrawals of that proponents’ and action agencies’ unless it displays a currently valid OMB this policy in accordance with the responsibilities include the provisions control number. criteria of the National Environmental of relevant authorities and that those Policy Act, as amended (NEPA) (42 Government-to-Government responsibilities do not extend to U.S.C. 4332(c)), the Council on Relationship With Tribes impacts unrelated to their action. Environmental Quality’s Regulations for In accordance with the President’s Requiring mitigation to impacts Implementing the Procedural Provisions memorandum of April 29, 1994, unrelated to a proponent’s action would of NEPA (40 CFR parts 1500–1508), and ‘‘Government-to-Government Relations likely conflict with the ‘‘essential the Department of the Interior’s NEPA with Native American Tribal nexus’’ required under Koontz for procedures (516 DM 2 and 8; 43 CFR Governments’’ (59 FR 22951), Executive property development (see Comment 1 part 46). Issuance of policies, directives, Order 13175 ‘‘Consultation and above). Accordingly, any effort to apply regulations, and guidelines that are of Coordination with Indian Tribal a landscape-scale approach to an administrative, financial, legal, Governments,’’ and the Department of mitigation must ensure that there is an technical, or procedural nature, or the Interior Manual at 512 DM 2, we whose environmental effects are too have considered possible effects on essential nexus between the proposed broad, speculative, or conjectural to federally recognized Indian tribes and activity and the contemplated lend themselves to meaningful analysis have determined that there are no mitigation and that mitigation is not and will later be subject to the NEPA potential adverse effects of withdrawing being imposed to correct for past process, either collectively or case-by- impacts by other actors. this policy. Our intent with case may be categorically excluded withdrawing these policies is to reduce Section 5 of the Mitigation Policy, under NEPA (43 CFR 46.210(i)). We confusion of mitigation programs, ‘‘Mitigation Framework,’’ calls for both have determined that a categorical projects, and measures, including those consideration of a landscape-scale exclusion applies to withdrawing this taken on Tribal lands. We will work approach in addition to ‘‘net policy. with Tribes as applicants proposing conservation gain.’’ Because net Paperwork Reduction Act of 1995 mitigation as part of proposed actions conservation gain is integral to the and with Tribes as mitigation sponsors. policies, even though considerations of This policy withdrawal does not landscape-scale approaches may be contain any new collections of Authority useful in some cases, withdrawing these information that require approval by the The multiple authorities for this policies will reduce confusion over the Office of Management and Budget action include the Endangered Species net conservation gain goal. This notice (OMB) under the Paperwork Reduction Act of 1973, as amended (16 U.S.C. 1531 does not affect the Service authorities Act of 1995 (44 U.S.C. 3501 et seq.). et seq.); Fish and Wildlife Coordination OMB has reviewed and approved the Act, as amended, (16 U.S.C. 661– that already allow the flexibility to information collection requirements for 667(e)); and National Environmental consider landscape-scale approach. In applications for incidental take permits, Policy Act (42 U.S.C. 4371 et seq.). some cases, taking the broader annual reports, and notifications of ecological context of both impacts and incidental take for native endangered Dated: July 24, 2018. mitigation opportunities into account by and threatened species for safe harbor Gregory J. Sheehan, applying a landscape-scale approach is agreements, candidate conservation Principal Deputy Director, U.S. Fish and an effective means of implementing the agreements with assurances, and habitat Wildlife Service. Service’s mission in a way that also conservation plans under OMB Control [FR Doc. 2018–16172 Filed 7–27–18; 8:45 am] benefits proponents. Number 1018–0094, which expires on BILLING CODE 4333–15–P daltland on DSKBBV9HB2PROD with RULES VerDate Sep<11>2014 17:02 Jul 27, 2018 Jkt 244001 PO 00000 Frm 00077 Fmt 4700 Sfmt 9990 E:\FR\FM\30JYR1.SGM 30JYR1$

Document Created: 2018-07-28 01:43:41
Document Modified: 2018-07-28 01:43:41

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Policy; withdrawal.
Dates		Withdrawal effective on July 30, 2018.
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.
FR Citation		83 FR 36472

83 FR 36472 - U.S. Fish and Wildlife Service Mitigation Policy

DEPARTMENT OF THE INTERIORFish and Wildlife Service

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

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service