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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service, Interior

Final Policy on the National Wildlife Refuge System and

Compensatory Mitigation Under the Section 10/404 Program

AGENCY: Fish and Wildlife Service, Interior

ACTION: Notice.

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SUMMARY: The U.S. Fish and Wildlife Service announces the final policy

on the National Wildlife Refuge System and Compensatory Mitigation

under the Section 10/404 program. We are establishing guidelines

regarding the use of the National Wildlife Refuge System for

compensatory mitigation requirements for water resource development

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

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

purpose of the policy is to provide guidance to our personnel when they

are evaluating whether a National Wildlife Refuge should be considered

as a site for wetland restoration, enhancement, or creation to replace

wetlands lost to dredge and fill impacts authorized by a Section 10/404

permit.

In general, we will not allow compensatory mitigation on National

Wildlife Refuge System lands because these lands are already targeted

for restoration, and we will be restoring these lands in the future. We

recognize that under some limited and exceptional circumstances,

compensatory mitigation on a National Wildlife Refuge may be

appropriate. If compatible activities occurring on a National Wildlife

Refuge require compensatory mitigation, the mitigation must occur

within the boundaries of the National Wildlife Refuge being affected

and must meet specific criteria. We will not support the use of

National Wildlife Refuge System lands for establishment of mitigation

banks. We may accept mitigation banks or mitigation projects as

additions to the National Wildlife Refuge System subject to specific

criteria. Where habitats have already been protected or restored under

other Federal programs designed to increase the Nation's wetlands, we

will not support the preservation of such restored wetlands as

compensatory mitigation for habitat losses from other projects

authorized under the Section 10/404 program, except in limited and

exceptional circumstances.

EFFECTIVE DATE: The policy becomes effective on October 12, 1999.

FOR FURTHER INFORMATION CONTACT: U.S. Fish and Wildlife Service, Dr.

Benjamin N. Tuggle, Chief, Division of Habitat Conservation, 400 ARLSQ,

Washington, D.C. 20240, telephone (703) 358-2161; or Dr. Richard A.

Coleman, Chief, Division of Refuges, 600 ARLSQ, Washington, D.C. 20240,

telephone (703) 358-1744.

SUPPLEMENTARY INFORMATION:

Background

The national goal of no net loss of wetlands recognizes the

importance and the special significance of wetlands to a variety of

functions and values including water quality, flood damage reduction,

groundwater recharge, and reduced sedimentation. In addition, wetlands

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

on the landscape. We (the U.S. Fish and Wildlife Service) strongly

support and contribute to this national goal by helping to reduce

wetland losses, by restoring lost or degraded wetlands, and by

protecting valuable wetlands by bringing them into the National

Wildlife Refuge System.

We administer over 92 million acres of land and water within the

National Wildlife Refuge System, and we have at least one National

Wildlife Refuge in each of the 50 states. The mission of the National

Wildlife Refuge System is to administer a national network of lands and

waters for the conservation, management, and where appropriate,

restoration of the fish, wildlife, and plant resources and their

habitats within the United States for the benefit of present and future

generations of Americans. We may allow public uses of National Wildlife

Refuge System lands, such as wildlife dependent recreation, when they

are compatible with the purposes of the refuge. However, the National

Wildlife Refuge System was established and is being managed first and

foremost for fish, wildlife, and plant conservation.

At times, we have acquired lands that have been disturbed by past

human activities. As such, some National Wildlife Refuges contain

degraded fish and wildlife habitats. The development community, and

others, have asked if these degraded habitats could be used as

mitigation sites for wetland and wildlife habitat losses that occur

outside the National Wildlife Refuge System. In the past, we have

discouraged the use of National Wildlife Refuge System lands for

compensatory mitigation, because we are authorized to restore degraded

habitats within the National Wildlife Refuge System and we will be

restoring these lands in the future, irrespective of off-Refuge

development. However, until now, we have not had a specific policy that

outlines when, or if, compensatory mitigation on National Wildlife

Refuge System lands might be appropriate.

We recognize that allowing compensatory mitigation on a refuge

could result in some resource gains within the National Wildlife Refuge

System. However, if we were to target the National Wildlife Refuge

System for compensatory mitigation, we could be facilitating a

significant net loss of wetlands within the watershed. But we also

recognize there may be some limited and exceptional circumstances where

allowing compensatory

[[Page 49230]]

mitigation to be implemented on a refuge may be in the best interest of

the fish, wildlife, and wetland resources in the area. Therefore, the

policy provides guidance and flexibility to our personnel when they are

determining whether, or under what circumstances, we might allow the

National Wildlife Refuge System to be used for compensatory mitigation

under the Section 10/404 program.

Previous Federal Action

We published the ``Draft Policy on the National Wildlife Refuge

System and Compensatory Mitigation under the Section 10/404 Program''

in the Federal Register on July 31, 1998 (60 FR 58605). The public

comment period closed on September 29, 1998.

Summary of Modifications

We modified the draft policy in response to the public comments and

additional internal review. Here is a summary of the important changes:

1. We clarified how the policy relates to private lands and to

wetlands that have been restored under other Federal programs, such as

the Partners for Fish and Wildlife Program.

2. We clarified our explanation of why the policy does not apply to

impacts to threatened or endangered species. Any impacts associated

with these species are addressed separately under the Endangered

Species Act.

3. We modified the ``grandfather clause'' in Part 7 of the policy.

We inserted a statement indicating that mitigation projects currently

being implemented are exempt from the policy. The policy will only

apply to future projects.

4. We rewrote the policy in ``Plain Language'', updated and

modified several definitions, and changed several technical terms for

consistency.

Responses to Comments

The following is a summary of the major comments raised during the

public comment period. We have included a summary of the comments, our

response, and any modifications to the policy.

Comment: Several commenters asked about the scope of the policy,

what we mean by ``National Wildlife Refuge System land'' and whether

the policy applies to other forms of compensatory mitigation.

Response. The policy applies to all lands and waters within the

National Wildlife Refuge System being considered for use as

compensatory mitigation for activities authorized under the Section 10/

404 program. The policy does not include lands that are within the

authorized refuge acquisition boundary, unless they are already owned

by the Fish and Wildlife Service as part of the NWRS. In addition, we

recognize there are other forms of mitigation being conducted on NWRS

lands, such as under Section 4(f) of the Department of Transportation

Act of 1966; however, the policy only addresses compensatory mitigation

required under the Section 10/404 program.

Comment: Several commenters are concerned that we are applying this

policy to private lands, particularly wetlands restored under the

Conservation Reserve Program, the Wetlands Reserve Program, and the

Partners for Fish and Wildlife Program.

Response: This policy provides guidance to Service personnel

evaluating compensatory mitigation proposals for activities authorized

under the Section 10/404 program. In contrast to circumstances in which

mitigation is proposed on lands within the National Wildlife Refuge

System and thus under the control of the Service, our recommendations

regarding mitigation proposals on private lands are advisory and not

controlling upon the permitting agency.

Preservation of existing wetland habitat compensates for permitted

wetland loss in only those limited and exceptional circumstances in

which a change in ownership or protection status serves to maintain

habitat that would otherwise be certain to be lost. We expect that many

private landowners who have used Federal conservation programs to

restore wetlands on their lands will allow those wetlands to remain

after the term of their restoration agreement or easement expires.

Accordingly, we will not recommend or support preservation of those

restored wetlands as compensatory mitigation, except in the limited and

exceptional circumstances in which their future loss is assured in the

absence of additional conservation measures.

Comment: Several commenters stated that if wetlands restored under

the Partners for Fish and Wildlife Program or the Conservation Reserve

Program cannot be used for compensatory mitigation, they may be

converted to non-wetland uses (e.g., agriculture) after the 10-year

agreement expires. The commenters believe that Section 10/404 permit

holders should target these lands for compensatory mitigation (i.e.,

preservation) to avoid conversion.

Response: We have clarified the policy to indicate that where

wetlands have been restored under Federal wetland restoration programs,

such as the Partners for Fish and Wildlife Program, we will not support

the use of these lands as compensatory mitigation under the Section 10/

404 program, during the term of the agreement (e.g., 10 years). Upon

expiration of the wetland restoration agreement, we will not support

the preservation of such restored wetlands as compensatory mitigation

for wetland losses under the Section 10/404 program, except in limited

and exceptional circumstances. This is consistent with our Mitigation

Policy and the Federal guidelines for establishing, using, and

operating mitigation banks.

Comment: Several commenters asked that we delete the restrictions

on adding mitigation bank lands to a refuge.

Response: The policy retains the restrictions on accepting

mitigation bank lands. We recognize the policy may necessitate changes

in how mitigation banking and wetland restoration is done in

conjunction with National Wildlife Refuge System lands. However, the

purpose of the policy is to ensure national consistency regarding

compensatory mitigation under the Section 10/404 program and the

National Wildlife Refuge System.

Comment: Several commenters asked why we are adopting such rigid

guidelines for accepting donated mitigation bank lands into the

National Wildlife Refuge System since mitigation banking represents an

important opportunity to expand our refuges.

Response: We recognize that accepting a mitigation bank into the

National Wildlife Refuge System is an opportunity to protect wetlands

and other wildlife habitat produced by compensatory mitigation

projects. That is why we included specific provisions that allow these

transfers to proceed. However, we want to avoid bringing wetlands and

other habitats into the National Wildlife Refuge System that are either

not fully restored, do not have sufficient operation and maintenance

funding, have mitigation credits running, or otherwise diminish the

responsibilities of the Section 10/404 program to fulfill its wetland

preservation goals. That is, we are willing to accept donated

mitigation bank lands only when they are clear of any outstanding

mitigation requirements and associated liabilities.

Comment: Several commenters asked why the policy prohibits

mitigation banks on National Wildlife Refuge System lands under all

circumstances, since mitigation banking is another form of compensatory

mitigation.

Response: If we allow mitigation banks to be established on

National Wildlife Refuge System lands, it could

[[Page 49231]]

result in a net loss of wetlands in the watershed. Since National

Wildlife Refuge System lands are already protected and we will be

restoring these lands, allowing mitigation banking on National Wildlife

Refuge System lands would not replace the off-Refuge wetland functions

and values that are lost to permitted development. By establishing

mitigation banks on National Wildlife Refuge System lands and selling

the mitigation credits, we would be ``trading'' off-Refuge wetlands for

accelerated restoration of on-Refuge wetlands. Although this may result

in some short-term habitat gains on National Wildlife Refuge System

lands, in the long-term, it could facilitate a net loss of wetlands in

the watershed.

In addition, there are several other concerns:

1. There may be an appearance of a conflict of interest if we are

also commenting on and developing mitigation options for the permitted

development through the Section

10/404 program;

2. If we allow mitigation banking on National Wildlife Refuge

System lands, we might be assigned some degree of liability for future

operation and maintenance of the bank if the bank sponsor abandons the

project prior to satisfying all mitigation responsibilities; and

3. If we allow Section 10/404 permittees to establish mitigation

banks on National Wildlife Refuge System lands, this may undermine

entrepreneurial (i.e., economically-based) efforts to develop private

mitigation banks elsewhere in the watershed.

Comment: One commenter asked why the policy does not apply to

threatened or endangered species. The commenter is concerned that if a

listed species is adversely affected by development permitted under

Section 10/404, we might allow compensatory mitigation for threatened

or endangered species to occur on National Wildlife Refuge System

lands.

Response: We have clarified the policy to specifically state that

consideration of impacts to threatened or endangered species is not

within the scope of this policy. Any such concerns are addressed under

the Endangered Species Act and its associated regulations at 50 CFR

Parts 17, 402, and 424.

Comment: The ``grandfather clause'' in the policy could allow a

significant amount of mitigation activities to be implemented on NWRS

lands which are inconsistent with the policy. In the draft policy, the

clause states: ``The policy does not apply to existing mitigation

agreements with the Service in effect at the time of policy issuance.''

However, we currently have several long-term agreements with various

organizations and agencies that allow compensatory mitigation to be

conducted in conjunction with National Wildlife Refuges. These

agreements could provide a permanent exemption from the policy.

Response: We have deleted the statement that exempts existing

mitigation agreements from the policy. Instead, we have stated that the

policy does not apply to existing mitigation projects that are

currently being implemented. However, we will review all mitigation

agreements, and modify them as necessary, to ensure they are consistent

with the policy. In other words, all mitigation projects currently

underway are exempt, but any new projects must comply with the policy.

Record of Compliance

We have prepared a Record of Compliance documenting that this rule-

making action complies with the various statutory, Executive Order, and

Department of the Interior requirements that are applicable to

rulemakings. A copy is available upon request. (See FOR FURTHER

INFORMATION CONTACT.)

The number of acres of wetlands restored on National Wildlife

Refuge System lands in FY96 was 79,291, but only approximately 10 acres

were restored as compensatory mitigation under the Section 10/404

program. Likewise, of the 60,708 acres of wetlands restored on National

Wildlife Refuge System lands in FY97, only 75 acres were restored under

the Section 10/404 program. Since the policy was developed to reflect

the informal practices currently used by Service personnel, the policy

will serve to codify, but not significantly change, agency practice.

Therefore, the numbers of acres of wetlands restored on National

Wildlife Refuge System lands as mitigation for activities authorized

under the Section 10/404 program will probably not change significantly

with the policy.

This policy was reviewed under Executive Order 12866. As discussed

above, only 85 acres during fiscal years 1996 and 1997 were restored on

national wildlife refuges as a result of compensatory mitigation while

a more than 130,000 acres were restored. Accordingly, this policy will

not have a significant economic effect on a substantial number of small

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

et seq.). Similarly, this policy is not a major rule under 5 U.S.C.

804(2), the Small Business Regulatory Enforcement Fairness Act.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501,

et seq.), this policy does not affect State, local, and tribal

governments since it only applies to lands and activities within the

National Wildlife Refuge System. This policy does not produce a Federal

mandate of $100 million or greater in any year, therefore, it is not a

``significant regulatory action'' under the Unfunded Mandates Reform

Act.

In accordance with Executive Order 12630, the policy does not have

significant takings implications. This policy will not result in

takings since it only applies to lands and activities within the

National Wildlife Refuge System.

In accordance with Executive Order 12612, the policy does not have

significant Federalism effects. This policy will not affect other

governments since it only applies to lands and activities within the

National Wildlife Refuge System. This policy will not affect small

governments.

In accordance with Executive Order 12988, the Office of the

Solicitor has determined that the policy does not unduly burden the

judicial system and meets the requirements of sections 3(a) and 3(b)(2)

of the Order. This policy does not require any information collection

for which Office of Management Budget approval is required under the

Paperwork Reduction Act (44 U.S.C. 3501 et. seq.).

We have analyzed this policy in accordance with the criteria of the

National Environmental Policy Act and 318 DM 2.2(g) and 6.3(D). This

policy does not constitute a major Federal action significantly

affecting the quality of the human environment. An environmental impact

statement/assessment is not required. We have determined there are no

effects on Federally recognized Indian tribes since it only applies to

lands and activities within the National Wildlife Refuge System. The

action is categorically excluded under Departmental NEPA procedures

(516 DM 2, Appendix 1.10), which applies to policies, directives,

regulations, and guidelines of an administrative, legal, technical, or

procedural nature; or the environmental effects of which are too broad,

speculative, or conjectural to lend themselves to meaningful analysis

and will be subject later to the NEPA process, either collectively or

case-by-case.

[[Page 49232]]

Final Policy on the National Wildlife Refuge System and

Compensatory Mitigation Under the Section 10/404 Permit Program

Part 1. What Is the Purpose of This Policy?

We are establishing a national policy on the National Wildlife

Refuge System and compensatory mitigation requirements for water

resource development activities administered by the Department of the

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

Rivers and Harbors Act. Our purpose is to provide guidance to our

personnel that have a decision making role for the use of lands within

the National Wildlife Refuge System as it applies to the Section 10/404

program.

The mission of the National Wildlife Refuge System is to administer

a national network of lands and waters for the conservation,

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

and plant resources and their habitats within the United States for the

benefit of present and future generations. The Federal government

established National Wildlife Refuges for the restoration,

preservation, development, and management of wildlife and wildlands

habitat; for the protection and preservation of endangered or

threatened species and their habitat; and for the management of

wildlife and wildlands to obtain the maximum benefits from these

resources (50 CFR 25.11(b)). We are currently managing National

Wildlife Refuge System lands to obtain the maximum fish, wildlife, and

ecological benefits. Therefore, our management and restoration

activities will occur regardless of other activities, including those

authorized under the Section 10/404 program.

We provide recommendations to the Department of the Army, Corps of

Engineers, for mitigation using the Clean Water Act, the Section

404(b)(1) guidelines, the Fish and Wildlife Coordination Act, the

National Environmental Policy Act, and our Mitigation Policy (January

23, 1981, 46 FR 7644). These authorities and guidance documents state

that the biological impacts must be determined by comparing the

environmental conditions with the project in place (the ``with-project

conditions'') against the environmental conditions without the project

in place (the ``without-project conditions''). Under our Mitigation

Policy, we recommend compensatory mitigation for unavoidable adverse

impacts to fish and wildlife resources only after project sponsors have

taken all practicable actions to avoid or minimize the impacts.

We will continue to restore wetlands and wildlife habitat on

National Wildlife Refuge System lands independent of off-Refuge water

resource development activities; therefore, our NWRS restoration

activities are part of the environmental conditions that would occur

without the development project authorized by the Section 10/404

permit. If we allow wetland restoration activities to occur on National

Wildlife Refuge System lands as compensatory mitigation for off-Refuge

impacts authorized under Section 10/404, we could be facilitating a

long-term net loss of wetlands within the watershed. Therefore, we will

not recommend or allow compensatory mitigation on National Wildlife

Refuge System lands for activities authorized under the Section 10/404

program, except as provided in this policy.

Part 2. What Are Definitions Used in This Policy?

There are numerous technical terms that are used throughout the

policy. We are providing the definitions to ensure clarity and

consistency.

Appropriate. The determination of what level of mitigation

constitutes ``appropriate'' is based on the comparison between the

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

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

or preservation at the mitigation site to replace the lost functions

and values after subtracting the baseline functions and values of the

mitigation site.

Bank sponsor. Any public or private entity responsible for

establishing and, in most circumstances, operating a mitigation bank.

Compensatory mitigation. For purposes of Section 10/404,

compensatory mitigation is the restoration, creation, enhancement, or

in exceptional circumstances, preservation of wetlands and/or other

aquatic resources for the purpose of compensating for unavoidable

adverse impacts which remain after all appropriate and practicable

avoidance and minimization has been achieved (Federal Guidance for the

Establishment, Use and Operation of Mitigation Banks (60 FR 58605)).

Credit. A unit of measure representing the accrual or attainment of

aquatic functions at a mitigation bank; the measure of function is

typically indexed to the number of wetland acres restored, created,

enhanced, or preserved (Federal Guidance for the Establishment, Use and

Operation of Mitigation Banks (60 FR 58605)).

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

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

Director means the Director of the United States Fish and Wildlife

Service.

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

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

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

Service Mitigation Policy, Manual Chapter 501 FW 2).

Habitat means the area which provides direct support for a given

species, population, or community. It includes all environmental

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

vegetation and soil characteristics and water supply, including both

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

Policy, Manual Chapter 501 FW 2).

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

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

NEPA regulations; 40 CFR 1508.8(b)).

Minimize means to reduce to the smallest practicable amount or

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

Chapter 501 FW 2).

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

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

by limiting the degree or magnitude of the action and its

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

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

impact over time by preservation and maintenance operations during the

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

providing substitute resources or environments.'' (CEQ NEPA

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

Mitigation bank. A mitigation bank is a site where wetland and/or

other aquatic resources are restored, created, enhanced, or in

exceptional circumstances, preserved expressly for the purpose of

providing compensatory mitigation in advance of authorized impacts to

similar resources. For purpose of Section 10/404, use of a mitigation

bank may only be authorized when impacts are unavoidable (Federal

Guidance for the Establishment, Use and Operation of Mitigation Banks

(60 FR 58605)).

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

an interest in land or water within the

[[Page 49233]]

National Wildlife Refuge System, but does not include Coordination

Areas (National Wildlife Refuge System Administration Act of 1966 (16

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

National Wildlife Refuge System means all lands, waters, and

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

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

wildlife species threatened with extinction, wildlife ranges, game

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

other areas for the protection and conservation of fish and wildlife

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

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

Practicable. Available and capable of being done after taking into

consideration cost, existing technology, and logistics in light of

overall project purposes (Federal Guidance for the Establishment, Use

and Operation of Mitigation Banks (60 FR 58605)).

Project means any action, planning or approval process relating to

an action that will directly or indirectly affect fish and wildlife

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

Chapter 501 FW 2).

Purposes of the refuge means the purposes specified in or derived

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

donation document, or administrative memorandum establishing,

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

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

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

Restoration. Re-establishment of wetland and/or other aquatic

resource characteristics and function(s) at a site where they have

ceased to exist, or exist in a substantially degraded state (Federal

Guidance for the Establishment, Use and Operation of Mitigation Banks

(60 FR 58605).

Part 3. What Are the Restrictions Regarding Compensatory Mitigation on

National Wildlife Refuge System Lands?

We will not allow compensatory mitigation for habitat losses

authorized through the Section 10/404 program to be implemented on

lands and waters within the National Wildlife Refuge System, except

under limited and exceptional circumstances. The criteria for

considering compensatory mitigation within the National Wildlife Refuge

System are as follows:

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

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

has undergone all appropriate sequencing for avoidance and minimization

of impacts, and is consistent with the U.S. Fish and Wildlife Service's

Mitigation Policy (Manual Chapter 501 FW 2); and

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

National Wildlife Refuge System, is consistent with the purposes for

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

Comprehensive Conservation Plan or other approved management plan(s)

for the refuge; and

(c) The mitigation would result in significantly increased natural

resource benefits when compared to other appropriate, off-site

mitigation options as determined by the Ecological Services Field

Office supervisor and the Refuge manager; and

(d) The mitigation plan is written to ensure we are under no

obligation to allow compensatory mitigation on any National Wildlife

Refuge System lands in the future; and

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

Director for approval.

Part 4. What Are the Restrictions for Mitigation Banks on National

Wildlife Refuge System Lands?

We will not allow use of National Wildlife Refuge System lands for

mitigation banks to compensate for the effects of activities authorized

by the Section 10/404 program. We may accept mitigation banks as

additions to the National Wildlife Refuge System under the following

conditions:

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

which the refuge was established and is consistent with an approved

Comprehensive Conservation Plan or other approved management plan(s)

for the refuge, as determined by the Refuge manager;

(b) The mitigation bank is consistent with the mitigation banking

agreement as determined by the appropriate Ecological Services Field

Office supervisor;

(c) The bank sponsor fully funds the transfer, management, and

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

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

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

28, 1995; 60 FR 58605);

(d) The mitigation bank is an established, functioning wetland (or

other wildlife habitat as appropriate) and the bank sponsor ensures

that all success criteria have been met in accordance with the approved

mitigation plan; and

(e) The bank sponsor withdraws or forfeits all mitigation credits

before we acquire the bank. The Regional Director may grant exceptions

to the requirement that all mitigation credits must be withdrawn or

forfeited prior to acquisition. However, if we accept a mitigation bank

before all credits are withdrawn, the bank sponsor must remain

responsible for meeting the criteria in the mitigation banking

agreement and must remain accountable for the mitigation credits.

The Regional Director must approve the addition of a mitigation

bank to a National Wildlife Refuge. If lands within the authorized

refuge acquisition boundary have been fully acquired, inclusion of a

mitigation bank must be approved by the Director.

Part 5. What Are the Requirements for Compensatory Mitigation for

Direct Effects on National Wildlife Refuge System Lands?

If we allow development activities under a Section 10/404 permit to

occur on a National Wildlife Refuge that require compensatory

mitigation, the mitigation must occur on the National Wildlife Refuge

being directly affected by the activity. However, before we can

authorize these activities on National Wildlife Refuge System lands,

the Refuge manager must:

(a) Determine the activity is compatible;

(b) Ensure the project sponsor has made every effort to avoid and

minimize the effects before they request compensatory mitigation;

(c) Determine the mitigation activities support the mission of the

National Wildlife Refuge System and are consistent with the purposes of

the refuge;

(d) Issue a special use permit, if appropriate; and

(e) Coordinate with the appropriate Ecological Services Field

Office supervisor.

Part 6. How Do We Treat Lands Protected by Other Federal Wetland

Programs?

Where habitats are protected or restored under other Federal

programs or activities designed to increase the Nation's wetlands, we

will not recommend, support, or advocate the use of these lands as

compensatory mitigation, including mitigation banks, for habitat losses

authorized under Section 10/404, under any circumstances, during the

term of the restoration agreement. These other Federal programs and

activities include easement areas associated with inventory and debt

restructure

[[Page 49234]]

properties under the Food Security Act, lands protected or restored for

conservation purposes under fee title transfers, lands protected by a

habitat management agreement with the Service, or habitats protected by

programs authorized by the Consolidated Farm and Rural Development Act,

and the Food Security Act of 1985. After the wetland restoration

agreement has expired, we will not recommend, support, or advocate the

preservation of such restored wetlands as compensatory mitigation for

habitat losses authorized under the Section 10/404 program, except in

limited and exceptional circumstances.

Part 7. What Is the Scope of the Policy?

This policy applies to all lands and waters within the National

Wildlife Refuge System considered for use as compensatory mitigation

for activities authorized under Section 404 of the Clean Water Act and

Section 10 of the Rivers and Harbors Act. The policy does not apply to

existing mitigation projects currently being implemented. However, we

will review all mitigation agreements currently in effect, and modify

them as necessary, to ensure consistency with this policy.

The policy does not apply to public lands administered by other

government agencies nor does it apply to private lands. However, the

purpose of the policy is to provide guidance to our personnel when they

are evaluating proposals for compensatory mitigation regarding a

proposed Section 10/404 permit. These proposed permits could be for

development actions occurring on either public or private lands.

This policy does not apply to threatened or endangered species. The

requirements for threatened and endangered species are covered in the

Endangered Species Act of 1973 and accompanying regulations at 50 CFR

Parts 17, 402, and 424. Under Section 7 of the Endangered Species Act,

as amended, all Federal agencies shall ensure that activities

authorized, funded, or carried out by them are not likely to jeopardize

the continued existence of listed species or result in the destruction

or adverse modification of critical habitat. Mitigating adverse impacts

of a project would not in itself be viewed as satisfactory agency

compliance with Section 7. Furthermore, it is clear to the Service that

Congress considered the traditional concept of mitigation to be

inappropriate for Federal activities impacting listed species or their

critical habitat.

Part 8. What Are the Authorities for This Policy?

We are establishing this policy in accordance with the following

authorities:

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

authorizes the development and distribution of fish and wildlife

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

development of policies and procedures that are necessary and desirable

to carry out the laws relating to fish and wildlife.

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

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

Fisheries Service, and the State agencies responsible for fish and

wildlife resources to investigate all proposed Federal undertakings and

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

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

other body of water and to make mitigation and enhancement

recommendations to the involved Federal agency.

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

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

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

concerning the conservation and development of wildlife resources on

small watershed projects''.

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

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

requires that Federal agencies, such as the U.S. Fish and Wildlife

Service, be notified of all major Federal actions affecting fish and

wildlife resources and their views and recommendations solicited. In

addition, the Act provides that the Congress authorize and directs

that, to the fullest extent possible, all agencies of the Federal

Government identify and develop methods and procedures which will

ensure that presently unquantified environmental values may be given

appropriate consideration in decision making along with economic and

technical considerations.

National Wildlife Refuge System Administration Act of 1966 (16

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

mission of the National Wildlife Refuge System is to administer a

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

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

resources and their habitats within the United States for the benefit

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

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

integrity, diversity, and environmental health of the National Wildlife

Refuge System; to develop comprehensive conservation plans for National

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

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

has been determined to be compatible.

Part 9. What References Are Cited in This Policy?

Federal Guidance for the Establishment, Use, and Operation of

Mitigation Banks, II. E. Long-Term Management, Monitoring, and

Remediation (November 28, 1995, 60 FR 58605).

U.S. Fish and Wildlife Service Draft Policy on the National

Wildlife Refuge System and Compensatory Mitigation under the Section

10/404 Program; Notice of Draft Policy and request for comments (July

31, 1998, 63 FR 40928-40932).

U.S. Fish and Wildlife Service Mitigation Policy; Notice of Final

Policy (January 23, 1981, 46 FR 7644) as corrected.

Dated: March 12, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 99-23627 Filed 9-9-99; 8:45 am]

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