7648 



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



Response: This is a policy that applies 

 only to Service personneL It does not 

 predetermine the actioiu of other 

 Federal agencies, nor the actions of 

 State agencies or developers. Although 

 the policy statement is not judicially 

 enforceable, the Service will administer 

 the policy by monitoring the mitigation 

 recommendadons made by its own 

 personneL 



Comment Too often land acquired for 

 mitigation does not provide the 

 spectrum of resource values previously 

 available because the managing 

 agency's philosophy prevents it from 

 managing the land for a mix of goals. 



Response: Lands acquired for 

 mitigation purposes must provide the 

 specific mitigation benefits for which 

 they were intended. Secondary land 

 uses, such as provision of timber, oil and 

 gas exploration, or recreational benefits, 

 should be attempted where these uses 

 are compatible with the mitigation 

 lands' primary purpose. This concept 

 has been added to the policy. 



SPEOnC COMMENTS ON THE 

 MmCATION POUCY 



[These comments are keyed to 

 sections of the proposed policy.) 



LPmpos* 



Comment Why is this policy 

 apparendy unconcerned with Qora? 



Response: Mitigating for fish and 

 wildlife losses necessarily means dealing 

 with the plant communities on which all 

 animal life indirecUy depends. When 

 habitat is preserved, it is the plant 

 communities that are the vast bulk of 

 the living material of that habitat 



Plants perse are addressed by other 

 authorities of the Service which are not 

 within the scope of this policy, such as 

 the Endangered Species Act and 

 associated regulations. 



ILAntbority 



No significant comments. 

 m. Scope 



Comment How does the policy affect 

 projects already completed or under 

 construction? 



Response: Appropriate changes in the 

 Scope section have been made to clarify 

 policy coverage with regard to 

 completed projects or projects under 

 construction. 



Comment Since Federal permit 

 renewals will result in no new effects on 

 the environment, they should be exempt 

 from the policy. 



Response: Tlie permit or license 

 renewal process provides an 

 opportunity to re-evaluate the project. 

 Depending on new scientific information 

 concerning impacts, the adequacy of 

 past developer mitigation efforts, or new 



authorities, new mitigation 

 recommendations may be necessary. 



Not infrequendy. permit or license 

 holders use the renewal process as a 

 convenient occasion to seek changes in 

 their permits. Any changes in permit or 

 license holders' activities have to be 

 evaluated to determine whether or not 

 they necessitate new mitigation 

 recommendations. 



lliis policy, therefore, will be used by 

 the Service in permit or license renewal 

 proceedings, keeping in mind that 

 Service recommendations are advisory 

 to action agencies. Appropriate changes 

 were made in the policy to reflect this 

 position. 



Comment Does this policy apply to 

 man-induced wetlands? 



Response: Where the Service has the 

 authority and responsibility to 

 recommend mitigation for these 

 habitats, the tenets of the policy shall 



Comment There is a need for a 

 mechanism for evaluating enhancement 

 and a means to differentiate it from 

 mitigation. 



Response: Although enhancement is 

 an important concern of the Service, the 

 Service mitigation policy should not 

 serve as the primary vehicle for 

 discussing enhancement. The final 

 policy does differentiate between 

 enhancement and mitigation 

 recommendations by defining 

 enhancement to include measures wdiich 

 would improve fish and wildlff e 

 resources beyond that which would 

 exist without the project and which 

 cannot be used to satisfy the 

 appropriate mitigation planning goaL As 

 for evaluating enhancement it would 

 appear likely that many of the 

 procedures that can be used to evaluate 

 mitigation can be used to evaluate 

 enhancement 



Comment What is the basis for the 

 policy position that enhancement cannot 

 occur until all losses are compensated? 

 There is no legislative history for this. 



Response: Unfortunately, the term 

 "enhancement" suffers from wide 

 differences in semantic usage. The 

 proposed policy used the term to be 

 synonymous with improvements beyond 

 the achievement of fiill mitigation. This 

 strict interpretation appeared to spark 

 controversy. 



The final policy incorporates a 

 different usage of the term. 

 Enhancement is used to describe 

 measures not necessary to accomplish 

 mitigation purposes. 



Comment The policy should credit 

 towards mitigation goals those habitat 

 value increases associated with areas of 

 the habitat which are enhanced by the 

 project Habitat value should be 



computed for enhancement activities, 

 and the inclusion of habitat 

 enhancement factors would provide for 

 a more accurate estimate of the project's 

 impact on the environment 



Response' Use of the term "habitat 

 enhancement" to describe-development 

 or improvement efforts is confused by 

 this comment The mitigation policy 

 does not cover enhancement as we have 

 described it However, where habitat 

 improvement or development caused by 

 a project will result in habitat value 

 increases, it may be considered as 

 mitigation when consistent with the 

 resource category designation criteria 

 and the appropriate mitigation planning 

 goaL 



Comment There should be a clear 

 statement that all opportunities for 

 enhancement of fish and wildlife 

 resources be thoroughly considered and 

 included in project plans to the extent 

 feasible. 



Response: We agree. Appropriate 

 changes were made. 



IV. Definition of Miiigadon 



Comment Some commentors 

 indicated concern over the definition of 

 mitigation as used in the policy. Specific 

 concern was expressed that those 

 aspects of project planning that include 

 avoidance or actions to TniniimVp 

 impacts should be considered good 

 project plaiming and that mitigation 

 should be confined solely to actions to 

 compensate for resource bsses. 



Response: The Service agrees diat 

 avoidance or actions to miniiniy 

 impacts should be part of the early 

 design of projects and not just an 

 afterthought Some consider mitigation 

 to be a separate and (fistinct process 

 that occurs after project planning has 

 been completed. The legally binding 

 definition of mitigation as used in the 

 regulations to implement the National 

 Environmental Policy Act (NEPA] can 

 have the effect of altenng this notion 

 through incorporation of all those 

 actions that can lessen project impacts 

 throughout the planning process. 



The policy has been modified to more 

 clearly state that the Service supports 

 and encourages incorporation of 

 features that wiU reduce adverse 

 impacts on fish and wildlife resources 

 as part of early planning and project 

 design in order to avoid delays or 

 conducts. But without the emphasis on 

 avoidance and minimization provided 

 by the NEPA regulations' definition, 

 there would be littie incentive for 

 development agencies to incorporate 

 such features. The Service, therefore, 

 supports and adopts that definition. 



