7646 



Federal Register / Vol. 46. No. 15 / Friday. January 23. 1981 / Notices 





correspond to the value and scarcity of 

 the habitat at risk. Four Resource 

 Categories of decreasing importance 

 were identified, with mitigation planning 

 goals of decreasing stringency 

 developed for these categories. Table 1 

 summarizes all categories and their 

 goals. 



Table 1: Resource Categories and 

 Mitigation Planning Goals 



R « « ou » c» 



Dasignalion 



MMgslion pfwfWiQ 



POUCY HISTORY •> 



The policy statement integrates and 

 outlines the major aspects of current 

 Service mitigation efforts, hitended as 

 an overview document its guidance is 

 based on an analysis of over 350 Service 

 field recommendations and on the 

 guidance contained in recent Service 

 management documents. The proposed 

 policy was published in the Federal 

 Register on September 9, 1980 (45 FR 

 59485-59494). A correction notice which 

 corrected insignificant formatting and 

 typographical errors was published on 

 September 19. 1980 (45 FR 62564). A 

 notice extending the comment period on 

 the proposed policy to November 10, 

 198a was published on October 8. 1980 

 (45 FR 66878). The final publication is 

 based on full and thorough 

 consideration of the pubUc comments as 

 discussed below. 



RESPONSE TO COMMENTS 



Over 90 sets of comments were 

 received on the proposed policy. All 

 comments were thoroughly analyzed 

 and cataloged and considered. Many 

 commentors expressed agreement with 

 Service publication of the policy, 

 sensing a more consistent and 

 predictable Service approach to 

 mitigation recommendations and a 

 resultant decrease in the degree of 

 conflict with developers. Many felt the 

 policy represented a rational approach 

 to fish and wildlife resource 

 management and that it would provide 

 for adequate protection and 

 conservation of the Nation's fish and 

 wildlife resources. The imderlying 

 concept that the degree of mitigation 

 requested should correspond to the 

 importance and scarcity of the habitat at 



risk was also supported by many 

 commentors. Numerous commentors 

 also praised its scope, cohesiveness and 

 clarity, and stressed that it should 

 provide valuable guidance for 

 Government personnel providing 

 technical and project planning 

 assistance. 



Detailed responses to significant 

 comments follow: 



GENERAL COMMENTS ON THE 

 PROPOSED SERVICE MITIGATION 

 POUCY 



Comment- Although the Service 

 prepared an Environmental Assessment 

 and, from its findings, concluded that 

 policy issuance did not constitute a 

 major Federal action which would 

 significantly affect the quality of the 

 human environment within the meaning 

 of Section 102(2)(C) of the National 

 Environmental Policy Act (NEPA). a few 

 commentors disagreed with the 

 Service's conclusion that an 

 Environmental Impact Statement (EIS) 

 was not necessary for the proposed 

 action. 



Response: During policy development 

 the Service took action to determine if 

 preparation of an environmental impact 

 statement under NEPA was reqtiired. 

 Although section 1508.18 of the Council 

 on EnAoronmental Quality's (CEQ) 

 Regulations for implementing the 

 procedural provisions of NEPA 

 classified adoption of an official policy 

 as a "Federal action." it remained 

 imclear as to whether this action was 

 "major." or whether it would 

 "significantly" affect the quality of the 

 human environment since policy 

 implementation would not result in or 

 substantially alter agency programs. As 

 was stated in the preamble, this policy 

 is basically a distillation of approaches 

 and policy currently being practiced by 

 Service field personnel in providing 

 mitigation recommendations. 



In order to resolve this uncertainty, an 

 Environmental Assessment was 

 prepared for the proposed and final 

 policy. By doing so. the Service has 

 complied with one of the major purposes 

 of the NEPA regulations, which is to 

 have NEPA applied early in the 

 decisionmaking process. 



The NEPA regulations do not in the 

 opinion of the Service, require that the 

 agency speculate on future, possible 

 events without any relation to actual, 

 existing impacts of an action. Section 

 1502.2 of the NEPA regulations directs 

 that an EIS is to be analytical, however, 

 the Service action simply does not 

 create any impacts capable of such 

 analysis. Thus, there is no reasonable or 

 scientific way for the Service to analyze 

 any environmental impacts, significant 



or otherwise, as discussed in | § 1502.16 

 and 1508.27. 



This problem is particulariy vexsome 

 when those impacts depend on future 

 contingencies and can be more 

 appropriately analyzed when those 

 contingencies occur. Even S 1502.4, 

 which discussed EIS's in terms of broad 

 agency actions, does so in the context of 

 specific impacts caused by the action. In 

 the opinion of the Service, it has fully 

 complied with the letter and spirit of 

 NEPA and its regulations. 



Comment: One commentor felt that 

 the preamble statement that an EIS 

 would be premature at this time 

 contradicted a finding of no significant 

 impact 



Response: The Service sees no 

 contradiction with a finding of no 

 significant impact and the statement 

 that an EIS is premature. The finding of 

 no significant impact derives from an 

 analysis showing that the policy has no 

 signiJEicant impacts amenable to analysis 

 at the present time. However, when in 

 the future the Service does apply the 

 policy in developing mitigation 

 recommendations for a major Federal 

 action which might significantly affect 

 the quality of the human environment 

 then the environmental impacts 

 associated with implementing those 

 recommendations which are considered 

 justifiable by the development agency 

 can be analyzed by that development 

 agency. The Service has no way of 

 predicting which of its recommendations 

 will be accepted by the developer; 

 therefore, analysis of impacts of 

 accepted mitigation recommendations is 

 the responsibility of the developer. 



Comment One commentor was of the 

 opinion that an EIS "should be prepared 

 for the Service's proposed mitigation 

 recommendations on each project" 

 Moreover, the commentor felt that a 

 significant portion of ftese EIS's should 

 be devoted to analysis of economic 

 impacts. 



Response: Mitigation 

 recommendations and actions cannot be 

 meaningfully analyzed except in the 

 context of the development action 

 initiating them. And. since an EIS would 

 be required for any major Federal action 

 which wotild significanUy affect the 

 quality of the human environment and 

 whose alternatives would include 

 consideration of mitigation, a separate 

 EIS would not be necessary for 

 mitigation actions. 



Under the FWCA the action agency 

 which makes the ultimate decision is to 

 include aU "justifiable mitigation means 

 and measures" in project formulation. 

 The burden of analyzing the economic 

 impacts of "justifiable" mitigation 

 measures therefore rests primarily with 



