7654 



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



Comment: Who owns land acquired 

 for mitigation purposes? 



Response: Depending on the 

 individual circumstances of the project, 

 land acquired through fee-simple title is 

 usually owned either by the Federal or 

 State government and administered by 

 appropriate Federal or State resource 

 agencies. Where wildlife easements are 

 acquired, the land belongs to the 

 property owner, and the easement right 

 to the Federal or State government 



Comment The policy should require 

 Service personnel to identify the 

 authority to be used in implementing 

 any mitigation recommendations that 

 are made. 



Response: The Enal policy clearly 

 identifies the legal authorities under 

 which the Service is expected to 

 develop mitigation recommendations. In 

 addition, the policy only applies to 

 Service recommendations and is not an 

 instrument directing legal research in 

 individual circumstances. It would be 

 inappropriate to instruct our personnel 

 to identify the implementing authority 

 for the development agencies which are 

 fully aware of the authorities available 

 to implement Service recommendations. 

 In the case of projects to be authorized 

 by Congress, authorities to implement 

 mitigation can be. and increasingly have 

 been, spelled out. 



Comment: The policy/ neglects to 

 indicate the necessary process if an 

 agency does not agree with Service 

 mitigation recommendations. 



Response: This process has already 

 been established for most Federal 

 agencies. If the project planners and the 

 Service field office cannot agree on a 

 modified or substitute proposal for 

 mitigation, the matter often is referred 

 upwards to the next highest leveL 

 Higher management levels are then 

 generally able to resolve the issue 

 quickly, although the Federal action 

 agency has the final say. No change was 

 necessary. 



Comment: Mitigation 

 recominendations should ensure that 

 habitats which are preserved are 

 adequate in size and contiguous to 

 ensure species survival and ecosystem 

 functioning. 



Response: We agree. This point has 

 not, however, been added to the policy 

 since it is standard operating procedure 

 at the field level 



Comment: Improvement of public use 

 prospects within a project area should 

 not be considered mitigation for habitat 

 value losses. Development of public 

 access is legitimate mitigation only 

 when public uses are lost as a result of 

 project action. 



Response: We agree. Construction of 

 public access facilities does not replace 



habitat lost or degraded and may even 

 reduce wildlife habitat and invite 

 degradation by making an area more 

 accessible to more people. Construction 

 of public use facilities may be in the 

 public interest but should not be 

 disguised as mitigation for loss or 

 degradation of wildlife habitat This 

 point has been added to the policy. 



4. FoUow-up 



Comment: The Service should initiate 

 post-project evaluation studies, as well 

 as encourage, support and participate in 

 these studies. 



Response: We agree and will do so 

 within the constraints of time, personnel 

 and cost The Service will initiate 

 additional follow-up studies when funds 

 are provided by the Federal action 

 agency. The policy has been changed to 

 reflect this. 



Comment: Follow-up studies must be 

 designed so as to separate the effects on 

 Hsh and wildlife populations of 

 implementing mitigation 

 recommendations from other causes of 

 changes in species numbers. This has 

 not been the case in past studies. 



Response: We agree in principle, but 

 point out that this is a very difficult task 

 technically, and that the conclusions in 

 this regard rarely withstand vigorous 

 analysis. 



Nonetheless, distinguishing the trje 

 causes of population changes should be 

 one of the goals of the follow-up study. 



Comment The policy should indicate 

 what actions would occur if post-project 

 evaluation shows mitigation 

 recommendations are not being 

 achieved as agreed to by the developer. 



Response: We agree. The policy now 

 includes provisions instructing Senice 

 personnel to recommend corrective 

 action in such situations. 



Appendix A 



No significant comments. 

 Appendix B 



. CozTzment: Why not include more 

 intensive management of remaining 

 habitat as a way of reducing net habitat 

 loss? 



Response: We agree, and have 

 modified the policy accordingly in the 

 Means and Measures section, which has 

 since been integrated into the body of 

 the final policy. 



The section dearly places priority on 

 increased habitat management as a 

 means of replacing habitat losses, and 

 additionally stresses use of existing 

 public lands to accomplish these ends. 



Comment A mitigation 

 recommendation of "No project" is not 

 logical or valid as a mitigation measure. 



Response: The Council on . 

 Environmental Quality's definition of 



mitigation, which has been adopted in 

 this policy, clearly states that mitigation 

 includes ". . . avoiding the impact 

 altogether by not taking a certain action 

 or parts of an action. . . ." Obviously, a 

 mitigation recommendation of "No 

 project" falls under this subset of the 

 definition, since a project's impact can 

 be avoided aJtogetherhy a decision not 

 to construct a project 



Apiiendix C 



Comment The definition of the word 

 "practicable" should be amended to 

 denote that the burden of identi^ing 

 alternative mitigation measures and of 

 conducting a searching inquiry into their 

 practicabilify rests with the Service as 

 well as the Federal action agency. 



Response: The policy indicates that 

 the Service will strive to provide 

 mitigation recommendations that 

 represent the best judgment of the 

 Service on the most effective means and 

 measures to achieve the mitigation goal 

 including consideration of cost 



Comment A definition for 

 "developments" (as used in Section 

 V.A., "General Principles") should be 

 provided in Appendix C. 



Response: "Development" is a 

 general-purpose term encompassing 

 those activities falling under the scope 

 of Service mitigation authorities cited 

 within this policy. Fcr s.xample. if timber 

 harvesting activities require preparation 

 of an EIS. or involves waters of the U.S. 

 and requires the issuance of a Federal 

 permit or license, the Service would 

 provide mitigation recooimendacons 

 consistent with the pclicy. 



NA-nONAL ENVIRONMENTAL 

 POUCY ACT REQUIREMENTS 



The Service has prepared an 

 Environmental Assessment of this Gnal 

 policy. Based on an analysis of the 

 Environmental Assessment the Director 

 of the U.S. Fish and Wildlife Service has 

 concluded that the final action is not a 

 major Federal action which would 

 significantly affect the quality of the 

 huunan environment within the meaning 

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

 Environmental Folic:.' Act of 1969 (42 

 U.S.C. 4321-^347). Thus the policy does 

 not require an Environmental Impact 

 Statement (EIS). 



The Environmental Assessment and 

 Finding of No Significant Impact will be 

 furnished upon request 



REGULATORY ANALYSIS 



This policy statement has been issued 

 in conformity with the Department of 

 the Interior's rulemaking requirements, 

 which apply to actions meeting the 

 broad definition of a rule set forth in the 

 Administrative Procedures Act 5 U.S.C 



