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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A98-20458

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** July 31, 1998
- **Citation:** 63 FR 40928

## Text

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]
BILLING CODE 4310-55-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-20458. Public record. Not legal advice.