Announcement of Draft Policy on the National Wildlife Refuge System and Compensatory Mitigation Under the Section 10/404 Program

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

Announcement of Draft Policy on the National Wildlife Refuge

System and Compensatory Mitigation Under the Section 10/404 Program

AGENCY: Fish and Wildlife Service.

ACTION: Announcement of draft policy; request for public comments.

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SUMMARY: The U.S. Fish and Wildlife Service announces a draft policy on

the National Wildlife Refuge System and Compensatory Mitigation under

the Section 10/404 program. This policy establishes national guidelines

regarding the use of the National Wildlife Refuge System for

compensatory mitigation requirements for water resource development

projects authorized by the Department of the Army under Section 404 of

the Clean Water Act and Section 10 of the Rivers and Harbors Act. The

purpose is to provide guidance to Service personnel when evaluating

whether a National Wildlife Refuge should be considered as a site for

wetland restoration, enhancement, or creation to replace wetlands lost

to dredge and fill impacts authorized by a Section 10/404 permit.

The Service generally will not allow compensatory mitigation on

National Wildlife Refuge System lands because these lands are already

targeted for restoration and the Service will be restoring these lands

in the future. However, the Service recognizes that under some limited

and exceptional circumstances, compensatory mitigation on a National

Wildlife Refuge may be appropriate. The Service will not support the

use of National Wildlife Refuge System lands for establishment of

mitigation banks. If compatible activities occurring on a National

Wildlife Refuge require compensatory mitigation, this mitigation must

occur within the boundaries of the National Wildlife Refuge being

affected and must meet specific criteria. The Service may accept

mitigation banks or mitigation projects as additions to the National

Wildlife Refuge System subject to specific criteria. Where habitats

have already been protected or restored under other Federal programs

designed to increase the Nation's wetlands, the Service will not

recommend, support, or advocate the use of such lands as compensatory

mitigation, including mitigation banks, for habitat losses authorized

under Section 10/404.

DATES: Comments from all interested parties must be received by

September 29, 1998.

ADDRESSES: Send any comments or material concerning the Draft Policy on

the National Wildlife Refuge System and Compensatory Mitigation under

the Section 10/404 program to the Chief, Division of Habitat

Conservation, U.S. Fish and Wildlife Service, 400 ARLSQ, Washington, DC

20240. Comments and materials received will be available for public

inspection, by appointment, during normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT: Dr. Benjamin N. Tuggle, Chief, U.S.

Fish and Wildlife Service, Division of Habitat Conservation, Telephone

(703) 358-2161 or facsimile (703) 358-1869, or Dr. Richard A. Coleman,

Chief, U.S. Fish and Wildlife Service, Division of Refuges, Telephone

(703) 358-1744.

SUPPLEMENTARY INFORMATION:

Background

The national goal of no net loss of wetlands recognizes the

importance and the special significance of wetlands to a variety of

functions and values including water quality, flood damage reduction,

groundwater recharge, and reduced sedimentation. Further, wetlands are

some of the most important habitats for fish and wildlife resources on

the landscape. The Service strongly supports and contributes to this

national goal by helping to reduce wetland losses, restoring lost or

degraded wetlands, and protecting valuable wetlands by bringing them

into the National Wildlife Refuge System.

The Service manages over 92 million acres of land and water within

the National Wildlife Refuge System and there are National Wildlife

Refuges in all 50 States. The mission of the National Wildlife Refuge

System is to administer a national network of lands and waters for the

conservation, management, and where appropriate, restoration of the

fish, wildlife, and plant resources and their habitats within the

United States for the benefit of present and future generations of

Americans. Although the Service may allow refuge uses, when determined

to be compatible, such as wildlife dependent recreation, the National

Wildlife Refuge System was established and is being managed first and

foremost for fish, wildlife, and plant conservation.

At times, the Service has acquired lands that have been disturbed

by past human activities. As such, some National Wildlife Refuges

contain degraded fish and wildlife habitat. The Service has been asked

if these degraded habitats could be used as potential mitigation sites

for habitat losses that occur outside the National Wildlife Refuge

System. Historically, the Service has discouraged the use of National

Wildlife Refuge System lands for compensatory mitigation (replacement

of or substitution for resource losses that compensate for project

impacts) because the Service is authorized to restore degraded habitats

within the National Wildlife Refuge System and will be restoring these

lands in the future, irrespective of off-Refuge development activities.

The Service recognizes that allowing compensatory mitigation on a

National Wildlife Refuge could result in some resource gains on Service

lands. However, targeting the National Wildlife Refuge System for such

purposes could result in significant resource losses outside the Refuge

boundary. The policy provides guidance to Service personnel when

determining whether, or under what circumstances, the Service would

allow the National Wildlife Refuge System to be used for compensatory

mitigation under the Section 10/404 Program.

Draft Policy on the National Wildlife Refuge System and

Compensatory Mitigation Under the Section 10/404 Permit Program

Part I. Purpose

This establishes national policy of the U.S. Fish and Wildlife

Service related to the National Wildlife Refuge System and compensatory

mitigation requirements for water resource development activities

administered by the Department of the Army under Section 404 of the

Clean Water Act and Section 10 of the Rivers and Harbors Act. The

purpose of the policy is to provide guidance to Service personnel when

evaluating whether a National Wildlife Refuge should be considered as a

site for wetland restoration, enhancement, or creation to replace

wetlands lost to dredge and fill operations authorized by a Section 10/

404 permit.

The mission of the National Wildlife Refuge System is to administer

a national network of lands and waters for

[[Page 40929]]

the conservation, management, and where appropriate, restoration of the

fish, wildlife, and plant resources and their habitats within the

United States for the benefit of present and future generations of

Americans. These Refuges were established for the restoration,

preservation, development, and management of wildlife and wildlands

habitat; for the protection and preservation of endangered or

threatened species and their habitat; and for the management of

wildlife and wildlands to obtain the maximum benefits from these

resources (50 CFR 25.11(b)).

Management measures to obtain fish, wildlife, and ecological

benefits from National Wildlife Refuge lands will occur regardless of

other activities authorized under the Section 10/404 program. Under the

Service's Mitigation Policy, appropriate and practicable compensatory

mitigation is required for unavoidable adverse impacts on fish and

wildlife resources, resulting from development projects, which remain

after all appropriate and practicable minimization actions have been

taken.

The Service provides recommendations for compensatory mitigation

using the Clean Water Act, Section 404(b)(1) guidelines, the Fish and

Wildlife Coordination Act, the National Environmental Policy Act, and

the U.S. Fish and Wildlife Services' Mitigation Policy. These

authorities and guidance documents state that net biological impacts

shall be determined by comparing the environmental conditions with the

project in place (the ``with-project conditions'') versus the

environmental conditions without the project (the ``without-project

conditions''). Wetland and habitat restoration activities on National

Wildlife Refuge System lands will proceed independent of off-Refuge

water resource development activities. Therefore, on-Refuge restoration

activities are part of the environmental conditions that would occur

without the water resource development project. As such, allowing

wetland restoration activities to occur on National Wildlife Refuge

System lands, as compensatory mitigation for off-Refuge impacts

pursuant to Section 10/404, would result in an overall net loss of

wetlands.

Part 2. Definitions

The following definitions apply for the purposes of this policy.

Appropriate. The determination of what level of mitigation

constitutes appropriate is based on the comparison between the

functions and values of the aquatic resources that will be impacted and

the potential of the proposed creation, restoration, enhancement, and/

or preservation at the mitigation site to replace the lost functions

and values after subtracting the baseline functions and values of the

mitigation site.

Compensatory mitigation is the full replacement of project-induced

losses to fish and wildlife resources, provided such full replacement

is consistent with the appropriate mitigation planning goal. (U.S. Fish

and Wildlife Service Mitigation Policy, Manual Chapter 501 FW 2).

Direct Effects are caused by the action and occur at the same time

and place. (CEQ NEPA regulations; 40 CFR Sec. 1508.8(a)).

Director means the Director of the United States Fish and Wildlife

Service.

Fish and wildlife resources means birds, fish, mammals, and all

other classes of wild animals and all types of aquatic and land

vegetation upon which wildlife is dependent (U.S. Fish and Wildlife

Service Mitigation Policy, Manual Chapter 501 FW 2).

Habitat means the area which provides direct support for a given

species, population, or community. It includes all environmental

features that comprise an area such as air quality, water quality,

vegetation and soil characteristics and water supply, including both

surface and groundwater. (U.S. Fish and Wildlife Service Mitigation

Policy, Manual Chapter 501 FW 2).

Indirect Effects are caused by the action and are later in time or

farther removed in distance, but are still reasonably foreseeable (CEQ

NEPA regulations; 40 CFR Sec. 1508.8(b)).

Minimize means to reduce to the smallest practicable amount or

degree. (U.S. Fish and Wildlife Service Mitigation Policy, Manual

Chapter 501 FW 2).

Mitigation includes: (a) Avoiding the impact altogether by not

taking a certain action or parts of an action; (b) minimizing impacts

by limiting the degree or magnitude of the action and its

implementation; (c) rectifying the impact by repairing, rehabilitating,

or restoring the affected environment; (d) reducing or eliminating the

impact over time by preservation and maintenance operations during the

life of the action; and (e) compensating for the impact by replacing or

providing substitute resources or environments.'' (CEQ NEPA

regulations; 40 CFR 1508.20(a-e)).

Mitigation banking is habitat protection or improvements conducted

expressly for the purpose of compensating for unavoidable losses in

advance of authorized impacts to similar resources (U.S. Fish and

Wildlife Service Mitigation Policy, Manual Chapter 501 FW 2).

National Wildlife Refuge means a designated area of land, water or

an interest in land or water within the National Wildlife Refuge

System, but does not include Coordination Areas. (National Wildlife

Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee: 80

Stat. 927), as amended.

National Wildlife Refuge System means all lands, waters, and

interests administered by the U.S. Fish and Wildlife Service as

wildlife refuges, areas for the protection and conservation of fish and

wildlife species threatened with extinction, wildlife ranges, game

ranges, wildlife management areas, or waterfowl production areas, and

other areas for the protection and conservation of fish and wildlife.

(National Wildlife Refuge System Administration Act of 1966; 16 U.S.C.

668dd-668ee: 80 Stat. 927 as amended.

Practicable means capable of being done within existing

constraints. The test of what is practicable depends on the situation

and includes consideration of the pertinent factors, such as

environment, cost, or technology (U.S. Fish and Wildlife Service

Mitigation Policy, Manual Chapter 501 FW 2).

Project means any action, planning or approval process relating to

an action that will directly or indirectly affect fish and wildlife

resources. (U.S. Fish and Wildlife Service Mitigation Policy, Manual

Chapter 501 FW 2).

Purposes of the refuge means the purposes specified in or derived

from law, proclamation, executive order, agreement, public land order,

donation document, or administrative memorandum establishing,

authorizing, or expanding a refuge, refuge unit, or refuge subunit.

(National Wildlife Refuge System Administration Act of 1966 (16 U.S.C.

668dd-668ee: 80 Stat. 927), as amended.

Part 3. Compensatory Mitigation on National Wildlife Refuge System

Lands

The Service will not allow compensatory mitigation for habitat

losses that occur through the Section 10/404 program to be implemented

on lands and waters within the National Wildlife Refuge System except

under limited and exceptional circumstances. The criteria for

considering compensatory mitigation within the National Wildlife Refuge

System are as follows:

(a) the proposed water resource development project, including the

mitigation plan, is consistent with the Section 404(b)(1) guidelines,

has undergone all appropriate sequencing

[[Page 40930]]

for avoidance and minimization of impacts, and is consistent with the

Fish and Wildlife Service's Mitigation Policy (Manual Chapter 501 FW

2); and

(b) the proposed mitigation plan supports the mission of the

National Wildlife Refuge System, is compatible with the purposes for

which the Refuge was established, and is consistent with an approved

Comprehensive Conservation Plan or other current management plans for

the Refuge; and

(c) the mitigation plan would result in significantly increased

natural resource benefits when compared to other appropriate, off-site

mitigation options as determined by the Ecological Services Field

Office supervisor and the Refuge Manager; and

(d) the mitigation plan is written to ensure the Service is under

no obligation to provide compensatory mitigation on any National

Wildlife Refuge System lands in the future; and

(e) the Regional Director recommends the mitigation plan to the

Director for approval.

Part 4. Mitigation Banks on National Wildlife Refuge System Lands

The Service will not support the use of National Wildlife Refuge

System lands for establishment of mitigation banks pursuant to

compensatory mitigation authorized by the Section 10/404 program. The

Service may accept mitigation banks as additions to a unit of the

National Wildlife Refuge System under the following conditions:

(a) The mitigation bank is directly related to the purposes for

which the Refuge was established and is consistent with an approved

Comprehensive Conservation Plan or other current management plans for

the Refuge, as determined by the Refuge Manager; and

(b) is consistent with the mitigation banking agreement as

determined by the appropriate Ecological Services Field Office

supervisor; and

(c) the project sponsor fully funds the transfer, management, and

protection of the mitigation bank/project as outlined in the ``Federal

Guidance for the Establishment, Use, and Operation of Mitigation Banks,

II. E. Long-Term Management, Monitoring, and Remediation'' (60 FR

58605); and

(d) if the Service elects to accept a mitigation bank, the bank

must be an established, functioning wetland and the mitigation bank

sponsor must ensure that all success criteria have been met in

accordance with the approved mitigation plan. The bank sponsor must

withdraw or forfeit all mitigation credits prior to acquisition by the

Service. The Regional Director may grant exceptions to the policy

requirement that all mitigation credits must be withdrawn or forfeited

prior to acquisition by the Service. If the Service elects to accept a

mitigation bank before all credits are withdrawn, the project sponsor

must be responsible for meeting the criteria in the mitigation banking

agreement and must remain accountable for the mitigation credits.

(e) the Regional Director must approve the addition of a mitigation

bank to a National Wildlife Refuge. If acquisition is beyond the

authorized acquisition boundary and exceeds the current acreage

limitations, the Director must provide final approval.

Part 5. Compensatory Mitigation for Direct Effects on National Wildlife

Refuge System Lands

In circumstances where activities occurring within a National

Wildlife Refuge require compensatory mitigation, the mitigation must

occur on the National Wildlife Refuge being directly affected by the

activity. The activity must first have been determined to be

compatible. Under no circumstances can an activity which has been

determined to be incompatible be allowed in exchange for compensatory

mitigation.

Every effort must be made to avoid and minimize the effects before

compensatory mitigation is applied. Further, mitigation activities must

support the mission of the National Wildlife Refuge System; must be

compatible with the purposes of the refuge and the Refuge System

mission; must be authorized by and be subject to, the terms and

conditions of a Special Use Permit issued by the Refuge manager; and

must be coordinated with the appropriate Ecological Services Office

supervisor.

Part 6. Lands Protected by Other Federal Wetland Programs

Where habitats are protected or restored under other Federal

programs designed to increase the Nation's wetlands, the Service will

not recommend, support, or advocate the use of such lands as

compensatory mitigation, including mitigation banks, for habitat losses

authorized under Section 10/404. This includes Federal programs that

protect or restore fish and wildlife habitats on private agricultural

lands, and includes, but is not limited to, easement areas associated

with inventory and debt restructure properties under the Food Security

Act, lands protected or restored for conservation purposes under fee

title transfers, lands protected by a habitat management agreement, or

habitats protected by programs authorized by the Consolidated Farm and

Rural Development Act, as amended, and the Food Security Act of 1985,

as amended.

Part 7. Scope of the Policy

A. Coverage

This policy applies to all lands and waters within the National

Wildlife Refuge System pursuant to compensatory mitigation requirements

authorized under Section 404 of the Clean Water Act and Section 10 of

the Rivers and Harbors Act. The policy does not apply to existing

mitigation agreements with the Service in effect at the time of policy

issuance.

The policy extends to Federal programs that increase the Nation's

wetlands or protect fish and wildlife habitats on private lands. This

includes wetlands protected or restored by programs authorized by the

Food Security Act of 1985, as amended, and the Consolidated Farm and

Rural Development Act, as amended.

B. Exclusions

The policy does not apply to public lands and waters administered

by other government agencies nor is it intended to provide guidance to

Service personnel when evaluating compensatory mitigation proposals on

other public lands.

This policy does not apply to conservation measures to protect or

restore threatened or endangered species. The Endangered Species Act of

1973, as amended and accompanying regulations at 50 CFR parts 17, 402,

and 424 outline the mitigation requirements for threatened and

endangered species.

Part 8. Responsibilities

Regional Directors are responsible for ensuring compliance with

this policy.

Public Comments Solicited

The Service requests comments on the Draft Policy on the National

Wildlife Refuge System and Compensatory Mitigation under the Section

10/404 Program. The Service is particularly interested in comments on

the criteria for allowing compensatory mitigation to occur within the

National Wildlife Refuge System (Part 3a-e, Part 5). In addition, the

Service is requesting comments on any cultural, economic, or other

impacts this policy may have on regulated entities, government

agencies, Tribes, or the public.

The Service will consider any comments and additional information

received within 60 days from the date of this publication. To ease

review and consideration of submitted comments, the Service prefers

that reviewers

[[Page 40931]]

organize their comments by Part (e.g., Part 1. Purpose, Part 2.

Definitions, etc).

Author/Editor

The author/editor of this document is Mark Bagdovitz, U.S. Fish and

Wildlife Service, Division of Habitat Conservation (see ADDRESSES

section).

Part 9. Authorities

This policy is established in accordance with the following major

authorities:

Fish and Wildlife Act of 1956 (16 U.S.C. 742(a)-754). This Act

authorizes the development and distribution of fish and wildlife

information to the public, the Congress, and the President; and the

development of policies and procedures that are necessary and desirable

to carry out the laws relating to fish and wildlife.

Fish and Wildlife Coordination Act (16 U.S.C. 661-667(e)); This Act

authorizes the U.S. Fish and Wildlife Service, the National Marine

Fisheries Service, and the State agencies responsible for fish and

wildlife resources to investigate all proposed Federal undertakings and

non-Federal actions needing a Federal permit or license which would

impound, divert, deepen, or otherwise control or modify a stream or

other body of water and to make mitigation and enhancement

recommendations to the involved Federal agency.

Watershed Protection and Flood Prevention Act (16 U.S.C. 1001-

1009); This Act allows the Secretary of the Interior to make surveys,

investigation, and ``* * * prepare a report with recommendations

concerning the conservation and development of wildlife resources on

small watershed projects.''

National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347).

This Act and its implementing regulations (40 CFR part 1500-1508)

requires that the U.S. Fish and Wildlife Service be notified of all

major Federal actions affecting fish and wildlife resources and their

views and recommendations solicited. In addition, the Act provides that

the Congress authorize and directs that, to the fullest extent

possible, all agencies of the Federal Government identify and develop

methods and procedures which will ensure that presently unquantified

environmental values may be given appropriate consideration in decision

making along with economic and technical considerations.

National Wildlife Refuge System Administration Act of 1966 (16

U.S.C. 668dd-668ee: 80 Stat. 927), as amended. This Act states that the

mission of the National Wildlife Refuge System is to administer a

national network of lands and waters for the conservation, management,

and where appropriate, restoration of the fish, wildlife, and plant

resources and their habitats within the United States for the benefit

of present and future generations of Americans. The Act requires, among

other things, the Secretary of the Interior: to maintain the biological

integrity, diversity, and environmental health of the National Wildlife

Refuge System; to develop comprehensive conservation plans for National

Wildlife Refuges; and not to initiate or permit a new use of a refuge

or expand, renew, or extend an existing use of a refuge, unless the use

has been determined to be compatible.

Part 10. Record of Compliance

The Record of Compliance certifies that this rule-making action

complies with the various statutory, Executive Order, and Department of

the Interior requirements that are applicable to rulemakings.

1. Regulatory Planning and Review. This policy is a significant

regulatory action and has been reviewed by the Office of Management and

Budget under Executive Order 12866.

a. Since this policy only affects lands and activities within the

National Wildlife Refuge System and is consistent with current Service

practice, the Service does not anticipate an increase in economic

effects associated with the proposed policy. This policy will not have

an annual economic effect of $100 million or adversely affect an

economic sector, productivity, jobs, the environment, or other units of

government. A cost-benefit and economic analysis is not required

because of small acreage involved.

b. This policy has the potential to create inconsistencies with

other agencies' actions. Although the proposed policy only affects

lands and activities within the National Wildlife Refuge System, it

could establish precedent for other land management agencies.

c. This proposed policy will not materially affect entitlements,

grants, user fees, loan programs, or the rights and obligations of

their recipients since the policy only applies to lands and activities

within the National Wildlife Refuge System.

d. This is a new policy that is intended to provide national

consistency regarding compensatory mitigation and the applicability of

National Wildlife Refuge System lands. The policy was developed to be

consistent with the National Wildlife Refuge System Administration Act

of 1966 as amended, the U.S. Fish and Wildlife Service's Mitigation

Policy (1981), and current agency practice.

2. Regulatory Flexibility Act. I certify that this policy will not

have a significant economic effect on a substantial number of small

entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601

et seq.). An initial Regulatory Flexibility Analysis is not required.

Accordingly, a Small Entity Compliance Guide is not required.

3. Small Business Regulatory Enforcement Fairness Act. The Office

of Management and Budget has determined that this policy is not a major

rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement

Fairness Act. This policy:

a. Does not have an annual effect on the economy of $100 million or

more since this policy will only affect lands and activities within the

National Wildlife Refuge System and is consistent with current Service

practice;

b. Will not cause a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions since this policy only affects lands

and activities within the National Wildlife Refuge System; and

c. Does not have significant adverse effects on competition,

employment, investment, productivity, innovation, or the ability of

U.S. based enterprises to compete with foreign-based enterprises since

this policy only affects lands and activities within the National

Wildlife Refuge System.

4. Unfunded Mandates Reform Act. In accordance with the Unfunded

Mandates Reform Act (2 U.S.C. 1501, et seq.):

a. This policy will not ``significantly or uniquely'' affect small

governments. This policy will not affect other governments since it

only applies to lands and activities within the National Wildlife

Refuge System. A Small Government Agency Plan is not required.

b. This policy will not produce a Federal mandate of $100 million

or greater in any year therefore, it is not a ``significant regulatory

action'' under the Unfunded Mandates Reform Act.

5. Takings. In accordance with Executive Order 12630, the policy

does not have significant takings implications. This policy will not

result in takings since it only applies to lands and activities within

the National Wildlife Refuge System. Private property will not be

affected by this policy. A takings implication assessment is not

required.

[[Page 40932]]

6. Federalism. In accordance with Executive Order 12612, the policy

does not have significant Federalism effects. This policy will not

affect other governments since it only applies to lands and activities

within the National Wildlife Refuge System. This policy will not affect

small governments. A Federalism assessment is not required.

7. Civil Justice Reform. In accordance with Executive Order 12988,

the Office of the Solicitor has determined that the policy does not

unduly burden the judicial system and meets the requirements of

sections 3(a) and 3(b)(2) of the Order.

8. Paperwork Reduction Act. This regulation does not require any

information collection under the Paperwork Reduction Act.

9. National Environmental Policy Act. We have analyzed this policy

in accordance with the criteria of the National Environmental Policy

Act and 318 DM 2.2(g) and 6.3(D). This policy does not constitute a

major Federal action significantly affecting the quality of the human

environment. An environmental impact statement/assessment is not

required.

10. Government-to-Government Relationship with Tribes. We have

evaluated possible effects on Federally recognized Indian tribes in

accordance with the President's memorandum of April 29, 1994,

``Government-to-Government Relations with Native American Tribal

Governments'' (59 FR 22951) and 512 DM 2. We have determined there are

no effects on Federally recognized Indian tribes since it only applies

to lands and activities within the National Wildlife Refuge System.

Dated: April 6, 1998.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 98-20458 Filed 7-30-98; 8:45 am]

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