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



7649 



V. Mitigation Policy of the U.S. Fish and 

 Wildlife Servin 



Comment A number of documents are 

 referred to in the draft policy. They are 

 essential to the functioning of the policy 

 and should be published as an appendix 

 and otherwise made available for public 

 comment, including public hearings. 



Response: The preamble to the 

 proposed policy clearly indicated that 

 the policy was designed to stand on its 

 own. The referenced documents are not 

 essential to the functioning of the policy. 

 For instance, even though Service field 

 personnel will rely basically on the 

 Habitat Evaluation Procedures in 

 conducting project analyses, the policy 

 indicates that other methods can be 

 used where appropriate and available. 

 The concept of habitat value has been 

 recognized throughout the history of fish 

 and wildlife management It is not new. 



Regardless of the fact that the policy 

 stands on its own. the referenced 

 documents have undergone varying 

 degrees of public scrutiny independent 

 of the mitigation policy. For instance, a 

 notice of availability and request for 

 public comment was published in the 

 Federal Register for the Service 

 Management Plan and Program 

 Management Document on September 

 29. 1980 (45 FR 64271-64272). A habitat- 

 based evaluation methodology has been 

 imder active development in the Service 

 since 1973. The first document officially 

 called the Habitat Evaluation 

 Procedures was published in 1976 with 

 the most recent revision in 1980. During 

 this 7 year period, the Nation's top 

 wildlife biologists have been consulted, 

 both within the government and outside. 

 The procedures have been presented at 

 nmnerotis public conferences and have 

 been the subject of intense scrutiny. 



Finally, the referenced documents 

 were made available to reviewers. Over 

 75 requests were made and immediately 

 filled to allow commentors the full 

 benefit of this information in preparing 

 comments, including the group providing 

 this comment Minor changes were 

 made in the policy to more clearly 

 indicate that the policy can stand on its 

 ovm. 



A. General Principles 



Comment: Pursued to its logical 

 conclusion, the concept of fish and 

 wildlife as public trust resources could 

 lead to serious restrictions on the use 

 and management of private lands. 



Response: When the concept of 

 personal property rights is exercised in 

 such a way as to jeopardize the interests 

 of the public in fish and wildlife 

 resources on public or private lands, the 

 government may use its authorities to 



see that any damage to those interests is 

 prevented or mitigated. 



The Service does and will attempt to 

 f ulfill its duties within its authorities and 

 in a reasonable manner. It is certainly 

 cognizant of the fact that pursuing any 

 concept to its logical extreme may lead 

 to unreasonableness, and will continue 

 to strive to prevent this fitim happening 

 in its mitigation activities. 



Comment: What does "equal 

 consideration" of wildlife conservation 

 mean within the context of the Fish and 

 Wildlife Coordination Act and this 

 mitigation policy? 



Response: "Equal consideration" was 

 not defined in the Act or this policy, and 

 has no particidar meaning in the context 

 of this policy. This policy only covers 

 Service recommendations, not action 

 agency requirements. 



Comment: The proposed Service 

 pohcy now absolutely precludes support 

 for non-water dependent projects within 

 or affecting waters of the United States. 

 This should be modified to conform to 

 the requirements of Federal regulatory 

 agencies such as the Army Corps of 

 Engineers (COE] and the Environmental 

 Protection Agency (EPA). 



Response: The Service policy clearly 

 does not exercise veto power over 

 development actions. Moreover, the 

 Service will execute its responsibilities 

 fully within the context of existing laws 

 and regulations governing 

 environmental reviews. However, the 

 Service feels that wetlands and shallow 

 water habitats should not be subjected 

 to needless development because of the 

 public values of these areas. The Service 

 policy statement does not include water 

 dependency as the "sole" criterion for its 

 reconunendations. Other factors, 

 including the likelihood of a significant 

 loss, are considered prior to a Service 

 recommendation for support of a project 

 or the "no project" alternative. 



The provisions of the policy have 

 been modified to make such 

 reconunendations discretionary. 



Comment Congress, not the Service, 

 is the entity that has the authority to 

 require and fund compensation for 

 Federal projects. 



Response: We agree. The policy has 

 been modified. 



Comment Mitigation should not be 

 required for an indefinite period of time. 



Response: Mitigation is appropriate 

 for the entire time period that habitat 

 losses persist which includes the life of 

 the project and as long afterwards as 

 the impacts of the project continue to 

 e.xist The policy reflects this position. 



Comment Under "General 

 Principles," the policy should seek and 

 endorse novel or imaginative 

 approaches to mitigation. < 



Response: The Service fully supports 

 development of novel and imaginative 

 approaches that mitigate losses of fish 

 and wildlife, their habitat and uses 

 thereof,~and has been in the forefront of 

 such development No change is 

 necessary. 



Comment An Indian tribe strongly 

 supports the Department of the Interior's 

 recognition of the role of Indian tribal 

 governments in mitigation planning. 



Response: Our national heritage and, 

 in some cases, the livelihood of Indian 

 tribes, can be directiy linked with the 

 conservation and use offish and wildlife 

 resources. Therefore, the U.S. Fish and 

 Wildlife Service will continue to 

 recognize and support Indian tribal 

 governments' efforts to mitigate impacts 

 on these resources. 



B. U.S. Fish and Wildlife Service Mitigation 

 Goals by Resource Category 



Comment The mitigation goals for the 

 resource categories were characterized 

 as: reasonable, too strict or not strict 

 enough. 



Response: As was explained in the 

 preamble to the draft policy, the 

 resource categories and their mitigation 

 goals were abstracted from an analysis 

 of actual field recommendations. The 

 designation criteria for the resource 

 categories (replaceability, scarcity, and 

 value for evaluation species] are the 

 basic decision factors used by Service 

 personnel to assess relative mitigation 

 needs. The mitigation goals represent 

 reasonable mitigation expectations for 

 projects, viewed in the light of our two- 

 faceted goal — [1] to conserve, protect 

 and enhance fish and wildlife and their 

 habitats, and (2) to facilitate balanced 

 development of our Nation's natural 

 resources. 



Numerous comments were received 

 commending us on the balanced 

 approach embodied in this policy. Since 

 its tenets derive from field 

 recommendations and comments, the 

 credit belongs entirely to our field staff. 



Some commentors criticized the 

 mitigation goals. One group felt that one 

 or several of the mitigation goals were 

 too strict These commentors objected to 

 what they considered to be 

 unreasonably high goals for fish and 

 wildlife mitigation. In contrast to this 

 first group, another set of commentors 

 felt that the goals were not strict 

 enough, and called attention to our 

 legislative responsibility to seek 

 protection for all fish and wildlife 

 resources. 



Our response is that the mitigation 

 goals represent the best professional 

 judgment and cumulative experience of 

 Service field supervisors in developing 

 mitigation proposals that would satisfy 



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