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



7647 



the project sponsor, who will likely use 

 the Water Resources Council's 

 Principles and Standards to assist in the 

 analysis. 



Comment: The substantive 

 requirements of the Service mitigation 

 policy should be consistent with the 

 requirements of the National 

 Environmental Policy Act's 

 implementing regulations and the Water 

 Resources Council's Principles and 

 Standards. 



Response: We agree. The proposed 

 and final policy have been developed 

 consistent with the substantive and 

 procedural requirements of these 

 regulations. 



Comment: The Environmental " 

 Assessment identifies as one of the 

 advantages of the proposed mitigation 

 policy the establishment of " * * * 

 minimum performance standards for 

 FWS recommendations (which) would 

 serve as benchmarks by which the FWS 

 and developers or action agencies * * * 

 could assess individual Service 

 mitigation proposals." However, neither 

 the Federal Register notice nor the 

 Environmental Assessment identify or 

 discuss these "benchmarks." 



Response: The term "benchmarks" 

 referred to the mitigation goals and 

 planning procedures. Both the proposed 

 policy preamble and its Environmental 

 Assessment disciissed these guidelines, 

 explaining their derivation and 

 importance to policy purposes. 

 However, a point of darification is 

 needed regarding these guidelines. It is 

 the recommendations made by Service 

 personnel that would be measured 

 against these standards, not the 

 mitigation implemented by an action 

 agency. The final policy makes this 

 point explicit 



Comment Many commentors argued 

 that the proposed policy goes beyond 

 that authorized by law. Specific concern 

 was expressed over the use of words 

 that were mandatory in tone (e.g.. 

 "require" and "musf^ as opposed to 

 advisory. In addition, some commented 

 that the Service has no authority to 

 support or oppose projects as stated in 

 the policy. 



Response: The Service agrees that the 

 legal authorities for the mitigation policy 

 do not authorize the Service to exercise 

 veto power over land and water 

 development activities. That 

 understanding was implicit in the 

 proposed policy. Appropriate changes 

 have been made in the policy to more 

 explidUy recognize and signify the 

 advisory nature of the Service 

 responsibilify. 



However, it should be clearly noted 

 that the Fish and Wildlife Coordination 

 Act places dear mandatory 



requirements on Federal development 

 agendes falling under that Act's 

 authority to (1) consult with the Service, 

 National Marine Fisheries Service 

 (NMFS) and State agendes responsible 

 for fish and wildlife resources; (2) 

 incorporate such reports and 

 recommendations in one overall project 

 report; (3) provide "full consideration" 

 of the "reports and reconmiendations;" 

 (4) indude in the project plan "such 

 justifiable means and measures for 

 wildUfe purposes as the reporting 

 agency finds should be adopted to 

 obtain overall maximum project 

 benefits;" and (5) other requirements 

 related to funding and land acquisition. 

 The dear intent of Congress was that 

 recommendations developed by the U.S. 

 Fish and Wildlife Service. NMFS, and 

 State agendes responsible for fish and 

 wildlife resources be taken seriously, 

 and we know of no law which prohibits 

 the Service from taking a position for or 

 against a project when making 

 mitigation recommendations. 



Comment: The policy will adversely 

 impact developmental interests. 



Response: The goal of the policy is to 

 provide for equal consideration of fish 

 and wildlife conservation while 

 facilitating development 



Congress has dearly stated that 

 "wildlife conservation shall receive 

 equal consideration and be coordinated 

 with other features of water-resource 

 development programs" (Pub. L 85-624, 

 Fish and Wildlife Coordination Act). 

 This advice is further amplified in 

 Senate Report 1981 on the FWCA (84th 

 Congress, 2nd Session (1958)). The 

 Congress recognized that in some 

 instances, the level of dollar benefits to 

 some purposes might have to be 

 diminished "in some slight degree" in 

 order to accomplish the fish and wildlife 

 conservation objectives of the Act 

 However, policy issuance should 

 benefit developmental interests. By 

 providing developers with a dear 

 picture of Service mitigation concerns 

 and priorities, the policy will allow 

 developers to antidpate Service 

 mitigation recommendations prior to 

 final dedsions on project design and 

 location. By reducing a developer's 

 planning uncertainties, the policy will 

 result in lowered project costs and 

 fewer project delays and conflicts. 



Comment- Does the policy present 

 general guidance or minimum required 

 standards? The Service appears to be 

 trying to establish required standards. 



Response: The final policy sets out 

 mitigation goals and planning guidance 

 to guide the development of Service 

 mitigation recommendations. It does not 

 require absolute strict adherence to a 



required standard. Changes have been 

 made to reflect this. 



Comment: No mention is made of the 

 State role in mitigation planning to 

 assure'a compatible approach. The 

 States' authorities and decisionmaking 

 prerogatives with respect to fish and 

 wildlife resources should be denoted 

 and the States' roles in mitigation 

 should be emphasized further. 



Response: A compatible approach is 

 desirable. We have induded appropriate 

 changes. However, the policy is solely 

 for Service personnel There is no intent 

 to infringe on the States' prerogatives. 

 Comment- The policy should require 

 full public disdosure of Service 

 mitigation analyses, determiniations. and 

 recommendations. 



Response: We agree that full 

 disdosure of Service analyses, 

 determinations and recommendations 

 during the mitigation process would 

 serve the public interest All public 

 documents associated with Service 

 recommendations for mitigation on 

 specific land and water developments 

 are available for review in Ecological 

 Services field ofiices. No change in the 

 policy is necessary. 



Comment: The Service should 

 specifically address the acid rain 

 problem in its policy. In particular, the 

 policy should address the impact of 

 Federal policies and programs that 

 support power plant conversions to coal. 



Response: The Service currendy ( 



reviews such Federal actions under 

 NEPA. since these polides and 

 programs are likely to require an EIS. 

 Because add rain has been highlighted 

 as an Important Resource Problem (IRP) 

 by the Seniice. environmental analyses 

 which do not adequately address add 

 rain problems will receive particular 

 attention by Service reviewers. Our 

 comments will be technically reinforced 

 by Service research already being 

 conducted in this area. Since the policy 

 already covers this issue, no change is 

 necessary. 



Comment- Could the mitigation policy 

 call for a recommendation as extreme as 

 reflooding of the Mississippi River 

 VaUey? 



Response: The mitigation policy 

 would not lead to so extreme a 

 recommendation because it does not 

 apply to development actions completed 

 prior to enactment of Service authorities 

 or exempted by those authorities. In 

 those situations where the policy does 

 apply, there will be no recommendations 

 for mitigation over and above the level 

 of impacts associated with a project 

 This policy acts to minimize impacts of 

 projects, not reverse them. 



Comment Which agency enforces this C 

 policy and what power does it have? 



