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



U.S. FISH AND WILDLIFE SERVICE 

 MITIGATION POUCY 



L PURPOSE 



This document estabiishes policy for 

 U.S Fish and Wildlife Ser.ice 

 recommendations on mitigating the 

 ' adverse impacts of land and water 

 developments on Gsh. wildlife, their 

 habitats, and uses thereof. It will help to 

 assure consistent and esective 

 reconmiendations by outlining policy for 

 the levels of mitigatioR needed and the 

 various methods for accomplishing 

 mitigation. It will allow Federal action 

 agencies and private developers to 

 anticipate Service recommendations and 

 plan for mitigation measures early, thus 

 avoiding delays and assuring equal 

 consideration of fish and wildlife 

 resources with other project features 

 and purposes. This policy provides 

 guidance for Service personnel but 

 variations appropriate to individual 

 circumstances are permitted. 



This policy supersedes the December 

 18. 1974. policy statement entitled 

 "Position Paper of the Fish and Wildlife 

 Service Relative to Losses to Fish and 

 Wildlife Habitat Caused by Federally 

 Planned or Constracted Water Resource 

 Developments" and the Ser^nce River 

 Basin Studies Manual Release 2.350 

 entitled "General Bureau Policy on River 

 Basin Studies." 



IL AUTHORITY 



This policy is established in 

 accordance with the following major 

 authorities: (See Appendix A for other 

 authorities.) 



Fish and Wildlife Act of 1938 (18 

 U.S.C 742(aK5^)- This .\ct authorizes 

 the development and distribution of 5sh 

 and wildlife information to the public. 

 Congress, and the President and the 

 development of policies and procedures 

 that are necessary and desirable to 

 carry out the laws relating to fish and 

 wildlife including: (1) ". . . take such 

 steps as may be required for the 

 development, advancement 

 management conservation, and 

 protection of the fisheries resources:" 

 and (2) ". . . take such steps as may be 

 required for the development 

 management advancement 

 conservation, and protection of wildlife 

 resources through research . . . and 

 other means." 



Fish and Wildlife Coordination Act 

 (16 U.S.a 661-667(e)). This Act 

 authorizes the U.S. Fish and Wildlife 

 Service. National Marine Fisheries 

 Service (NMFS). and State agencies 

 responsible for fish and wildlife 

 resources to investigate ail proposed 

 Federal undertakings and non-Federal 

 actions needing a Federal permit or 



license which would impound, divert 

 deepen, or otherwise control or modify a 

 stream or other body of water and to 

 make mitigation and enhancement 

 recommendations to the involved 

 Federal agency. "Recommendations . . '. 

 shall be as specific as practicable with 

 respect to features recommended for 

 wildlife conservation and development 

 lands to be utilized or acquired for such 

 purposes, the results expected, and shall 

 describe the damage to wildlife 

 attributable to the project and the 

 measures proposed for mitigating or 

 compensating for these damages." In 

 addition, the Act requires that wildlife 

 conservation be coordinated with other 

 features of water resource development 

 programs. 



Determinations under this authority 

 for specific projects located in estuarine 

 areas constitute compliance with the 

 provisions of the Estuary Protection Act 

 (See Appendix A.] 



Watershed Protection and Flood 

 Prevention Act (16 U.S.C 1001-1009). 

 This Act allows the Secretary of the 

 Interior to make surveys, investigations. 

 and ". . . prepare a report with 

 recommendations concerning the 

 conser\'ation and development of 

 wildlife resources ..." on small 

 watershed projects. 



Naticr.ci Er.vironmental Poiicy Act of 

 1S69 (42 L'.S.C 4321-1347). This .-let and 

 its implementing regulations (40 CFR 

 Part 15CO-1508) requires that the U.S. 

 Fish and Wildlife Service be notified of 

 all major Federal actions affecting fish 

 and wildlife resources and their views 

 and recommendations solicited. Upon 

 completion of a draft Environmental 

 Impact Statement the Service is 

 required to review it and make 

 comments and recommendations, as 

 appropriate. In addition, the Act 

 provides that "the Congress authorizes 

 and directs that to the fullest e.xtent 

 possible ... all agencies of the Federal 

 Government shall . . . identify and 

 . develop methods and procedures . . . 

 which will ensure that presently 

 unquantified environmental amenities 

 and values may be given appropriate 

 consideration in decisionmaking along 

 with economic and technical 

 considerations." 



in. SCOPE 



A. Coverage 



This policy applies to all activities of 

 the Service related to the evaluation of 

 impacts of land and water developments 

 and the subsequent recommendations to 

 mitigate those adverse impacts except 

 as specifically excluded below. This 

 includes: (1) investigations and 

 recommendations for all actions 



requiring a federally issued permit or 

 license that would impact waters of the 

 U.S.; (2) all major Federal actions 

 significantly affecting the quality of the 

 human environment: and (3) other 

 Federal actions for which the Service 

 has legislative authority or executive 

 direction for involvement including, but 

 not limited to: coaL minerals, and outer 

 continental shelf lease sales or Federal 

 approval of State permit programs for 

 the control of discharges of ^dged or 

 fill material 



B. Exclusions 



This policy does not apply to 

 threatened or endangered species. The 

 requirements for threatened and 

 endangered species are covered in the 

 Endangered Species Act of 1973 and 

 accompanying regulations at 50 CFR 

 Parts 17. 402. and 424. Under Section 7 of 

 the Endangered Species Act as 

 amended, all Federal agencies shall 

 ensure that activities authorized, 

 funded, or carried out by them are not 

 likely to jeopardize the continued 

 existence of listed species or result in 

 the destruction or adverse modification 

 of critical habitat. Mitigating adverse 

 impacts of a project would not in itself 

 be viewed as satisfactory agency 

 compliance with Section 7. Furthermore, 

 it is clear to the Service that Congress 

 considered the traditional concept of 

 mitigation to be inappropriate for 

 Federal activities impacting listed 

 species or their critical habitat 



This policy does not apply to Service 

 recommendations for Federal projects 

 completed or other projects permitted or 

 licensed prior to enactment of Service 

 authorities (unless indicated othenvise 

 in a specific statiite] or specifically 

 exempted by them and not subject to 

 reauthorization or renewal It also does 

 not apply where mitigation plans have 

 already been agreed to by the Service, 

 except where new activities or changes 

 in current activities would result in new 

 impacts or where new authorities, new 

 scientific information, or developer 

 failure to implement agreed upon 

 recommendations make it necessary. 

 Service personnel involved in land and 

 water development investigations will 

 make a judgment as to the applicability 

 of the policy for mitigation plans under 

 development and not yet agreed upon as 

 of the date of final publication of this 

 policy. 



Finally, this policy does not apply to 

 Service recommendations related to the 

 enhancement of nsh and wildlife 

 resources. Recommendations for 

 measures which improve fish and 

 wildlife resources beyond that which 

 would exist without the project and 

 which cannot be used to satisfy the 



