ANPR Cheat Sheet

A Policy Reference for Commenting on the FWS’ Compensatory Mitigation Mechanisms ANPR

The Fish and Wildlife Service (FWS) is requesting input on an Advanced Notice of Proposed Rulemaking (ANPR) on Compensatory Mitigation Mechanisms. This ANPR is coming out in advance of the expected return of the 2016 FWS and Endangered Species Act (ESA) mitigation policies. Many of the questions in the ANPR are already discussed in the 2016 policies. We found ourselves going back to those policies and quoting them in our response, so we thought we would compile this relevant information in case it is helpful for you as you compile your response to the ANPR. Below we organize information based on the six questions posed in the ANPR. 

Contents

(1) Equivalent standards

(2) Durability and Additionality

(3) Monitoring, Financial Assurances, Publicly Accessible Mitigation Data Tracking Systems

(4) Other Hurdles to Species Bank Establishment

(5) Alignment with the 2008 Rule

(6) Banking on Federal and Tribal Lands

(1) Equivalent Standards

“What level of detail should be in the proposed rule to ensure equivalent standards are consistently applied to all forms of compensatory mitigation, including equivalence in covering the costs of mitigation whether they are on public or private lands?” (ANPR)

“5.6.3.1 Equivalent Standards… Service recommendations or requirements will apply equivalent ecological, procedural, and administrative standards for all compensatory mitigation mechanisms.” The section also notes “...any compensatory mitigation mechanism should incorporate, address, or identify the following that are intended to ensure successful implementation and durability” and then lists elements like site selection, site protection instruments, performance standards, financial assurances, and more (2016 FWS mitigation policy, Section 5.6.3.1, a-l)

“The compensatory mitigation standards apply to all compensatory mitigation mechanisms (i.e., permittee-responsible mitigation, conservation banks, in-lieu fee programs, etc.) and all forms of compensatory mitigation (i.e., restoration, preservation, establishment, and enhancement) approved by the Service.” “7. Compensatory Mitigation Mechanisms… “Habitat-based compensatory mitigation will be held to equivalent standards (the standards set forth in this policy) regardless of the mitigation mechanism(s) proposed.”(2016 ESA mitigation policy, Sections 5 and 7).

(2) Durability and Additionality

“What level of detail should be in the proposed rule regarding durability and additionality standards to both achieve equivalent standards across mitigation mechanisms and provide species conservation?”(ANPR)

Durability

“Durability. The Service will recommend or require that mitigation measures are durable, and at a minimum, maintain their intended purpose for as long as impacts of the action persist on the landscape. The Service will recommend or require that action proponents provide assurances of durability, including financial assurances, to support the development, maintenance, and long-term effectiveness of the mitigation measures” (2016 FWS mitigation policy, Section 4). 

“Ensure Durability. Compensatory mitigation must be secured by adequate legal, real estate,  and financial protections that ensure the success of the mitigation. Most compensatory mitigation projects are permanent, and the viability of the assurances to achieve long-term stewardship of a mitigation site must be carefully planned and implemented to  ensure durability. A compensatory mitigation measure is ‘‘durable’’ when the effectiveness of the measure is sustained for the duration of the associated impacts (including direct and  indirect impacts) of the authorized action (600 DM 6.4H)” (2016 ESA mitigation policy, Section 5.6). 

“Timing and Duration. Compensatory mitigation projects must achieve conservation objectives within a reasonable timeframe and for at least the duration of the impacts…” and the text also indicates duration for non-permanent impacts (2016 ESA mitigation policy, Section 5.5).

Additionality

“Additionality. A compensatory mitigation measure is additional when the benefits of a compensatory mitigation measure improve upon the baseline conditions of the impacted resources and their values, services, and functions in a manner that is demonstrably new and would not have occurred without the compensatory mitigation measure” (Section 6, Definitions, FWS mitigation policy). 

“Effective compensatory mitigation. …The Service will recommend compensatory mitigation that provides benefits to the affected species that are additional to the benefits of existing conservation efforts or those planned for the reasonably foreseeable future…”(2016 FWS mitigation policy, Section 4.h). 

“Recommendations for Locating Compensatory Mitigation on Public or Private Lands… The Service generally only supports locating compensatory mitigation on (public or private) lands that are already designated for the conservation of natural resources if additionality (see section 6, Definitions) is clearly demonstrated and is legally attainable…” The section provides further details on conditions necessary to recommend compensatory mitigation on public lands: “The Service may recommend compensating for private land impacts to evaluation species on public lands (whether designated for conservation of natural resources or not) when: a. Compensation is an appropriate means of achieving the mitigation planning goal, as specified in this Policy; b. the compensatory mitigation would provide additional conservation benefits above and beyond measures the public agency is foreseeably expected to implement absent the mitigation (only such additional benefits are counted towards achieving the mitigation planning goal); c. the additional conservation benefits are durable, i.e., lasting as long as the impacts that prompted the compensatory mitigation; d. consistent with and not otherwise prohibited by all relevant statutes, regulations, and policies; and e. the public land location would provide the best possible conservation outcome, such as when private lands suitable for compensatory mitigation are unavailable or are available but do not provide an equivalent or greater contribution towards offsetting the impacts to meet the mitigation planning goal for the evaluation species. Ensuring the durability of compensatory mitigation on public lands may require multiple tools beyond land use plan designations, including right-of-way grants, withdrawals, disposal or lease of land for conservation, conservation easements, cooperative agreements, and agreements with third parties. Mechanisms to ensure durability of land protection for compensatory mitigation on public and private lands vary among agencies, but should preclude conflicting uses and ensure that protection and management of the mitigation land is commensurate with the magnitude and duration of impacts.” (2016 FWS mitigation policy, Section 5.7.2).

The 2016 FWS mitigation policy includes an Appendix C on Compensatory Mitigation in Financial Assistance Awards Approved or Administered by the U.S. Fish and Wildlife Service. The Appendix provides a lengthy description of the circumstances in which a project that touches Federal grant funds could provide compensatory mitigation. 

“Additionality—conservation benefits of a compensatory mitigation measure that improve upon the baseline conditions of the impacted resources and their values, services, and functions in a manner that is demonstrably new and would not have occurred without the compensatory mitigation measure (600 DM 6.4G).” (2016 ESA mitigation policy, Appendix B: Glossary of Terms Related to Compensatory Mitigation)

“Judicious Use of Additionality. Compensatory mitigation must provide benefits beyond those that would otherwise have occurred through routine or required practices or actions, or obligations required through legal authorities or contractual agreements. A compensatory mitigation measure is ‘‘additional’’ when the benefits of the measure improve upon the baseline conditions of the impacted resources and their values, services, and functions in a manner that is demonstrably new and would not have occurred without the compensatory mitigation measure (600 DM 6.4G). The additional benefits may result from restoration or enhancement of habitat; preservation of existing habitat that lacks adequate protection; management actions that protect, maintain, or create habitat (e.g., regularly scheduled prescribed burns or purchase of rights in a split estate); or other activities (e.g., an action that reduces threats from disease or predation, or captive breeding and reintroduction of individuals or populations). Baseline conditions for the habitat relevant to the species must be assessed prior to implementing the compensatory mitigation project for comparison to conditions after completion of the compensatory mitigation project in order to quantify and verify the additional benefits derived from the mitigation project. Demonstrating additionality on lands already designated for conservation purposes can be challenging, particularly when the lands under consideration are public lands. In general, credit can only be authorized for compensatory mitigation on public lands if additionality can be clearly demonstrated and is legally attainable. See section 6.2. Eligible Lands for guidance on using public lands for compensatory mitigation.” (2016 ESA mitigation policy, Section 5.4).

“Use of Public Land To Mitigate Impacts on Private Land. In general, the Service supports compensatory mitigation on public lands that are already designated for the conservation of natural resources to offset impacts to the species on private lands only if additionality is clearly demonstrated and is legally attainable. Additionality is a reasonable expectation that the conservation benefits associated with the compensatory mitigation actions would not occur in the foreseeable future without those actions. Offsetting impacts to private lands by locating compensatory mitigation on public lands already designated for conservation purposes generally risks a long-term net loss in landscape capacity to sustain species (e.g., future reduction in the range of the species) by relying increasingly on public lands to serve conservation purposes. However, we recognize under certain circumstances this offset arrangement may provide the best possible conservation outcome for the species based on best available science. When this is the case, the Service will consider mitigation on public lands to offset impacts to the species on private lands appropriate if: • Compensatory mitigation is an appropriate means of achieving the mitigation planning goal for the species; • Additionality can be clearly demonstrated and quantified, and is supplemental to conservation the public agency is foreseeably expected to implement absent the mitigation (only conservation benefits that provide additionality are counted towards achieving the mitigation planning goal); • Durability of the compensatory mitigation is ensured (see section 6.2.3. Ensuring Durability on Public Lands); • It is consistent with and not otherwise prohibited by all relevant statutes, regulations, and policies; and • Private lands suitable for compensatory mitigation are unavailable or are available but cannot provide an equivalent or greater contribution towards offsetting the impacts to meet the mitigation planning goal for the species…” (2016 ESA mitigation policy, Section 6.2.2.)

(3) Monitoring, Financial Assurances, and Publicly Accessible Mitigation Data Tracking Systems

“How should the proposed rule incorporate monitoring, financial assurances, and publicly accessible mitigation data tracking systems to ensure a compensatory mitigation mechanism is meeting its performance standards?” (ANPR)

Monitoring

Monitoring is mentioned within Section 5.6.3.1 Equivalent standards as one of the elements required of all forms of mitigation; Section 5.8.C. Final Recommendations as an element of a mitigation plan (2.c and d); and 5.9 Follow-up “Determining whether Service mitigation recommendations were adopted and effective requires monitoring, and when necessary, corrective action” (2016 FWS mitigation policy).

Monitoring is mentioned within Section 5.3 Reliable and Consistent Metrics in the context of adjusting metrics based on monitoring; and within Appendix B Glossary of Terms, in the definition of Adaptive Management, and the definition of Durability - requiring sufficient funding for long-term monitoring (2016 ESA mitigation policy).

Financial Assurances

Financial assurances is mentioned in Section 4 General Policy and Principles, g. Durability (e.g., financial assurances is part of an assurance of durability); in Section 5.6.3.1 Equivalent Standards in the list of attributes needed in all forms of mitigation; and in C. Final Recommendation in the list of elements within a mitigation plan (2016 FWS mitigation policy).

Financial assurances is mentioned in the context of durability: Section 5.6 Ensure Durability, and Appendix B. Glossary of Terms, Durability (2016 ESA mitigation policy).

Transparency / Publicly Accessible Data 

“Ensure consistency and transparency. The Service will use timely and transparent processes that provide predictability and uniformity through the consistent application of standards and protocols as may be developed to achieve effective mitigation” (2016 FWS mitigation policy, Section 4.e). 

“5.9. Maintain Transparency and Predictability. Consistent implementation of ESA programs that permit or authorize incidental take of listed species will provide regulatory predictability for  everyone. The Service will share appropriate information on the availability of compensatory mitigation programs and projects with the public through online media or other appropriate means. Information regarding conservation banks is available on the Regulatory In-lieu fee  and Bank Information Tracking System (RIBITS) (https://ribits.usace.army.mil). The Service anticipates working with the USACE to update RIBITS so that it may be used for our in-lieu fee  programs. Similar information for habitat credit exchanges and other third party sponsored mitigation projects, or when it is not otherwise possible to use RIBITS, must be made publicly  accessible.” (2016 ESA mitigation policy, Section 5.9)

(4) General Banking Hurdles

“What are the hurdles to species bank establishment that are within the Service’s authority to address through regulation?” (ANPR)

What is relevant depends on the theme of interest to you. Here are a couple themes we think are important. 

Timelines

6.5. Timelines “The Service does not have mandated timelines for review of conservation banks, in-lieu fee programs, or other compensatory mitigation projects that are not part of a consultation or permit decision. However, this does not mean that compensatory mitigation programs and projects are not a priority for the Service.” (2016 ESA mitigation policy)

Preference for In-Advance, Consolidated Mitigation

6.1.2. Preference for Compensatory Mitigation in Advance of Impacts. “After following the principles and standards outlined in this policy and all other considerations being equal, preference will be given to compensatory mitigation projects implemented in advance of impacts to the species…” (2016 ESA mitigation policy)

6.1.3. Preference for Consolidated Compensatory Mitigation. “Mitigation mechanisms that consolidate compensatory mitigation on the landscape, such as conservation banks and in-lieu fee programs, are generally preferred to small, disjunct compensatory mitigation sites spread across the landscape. Consolidated mitigation sites generally have several advantages over multiple, small, isolated mitigation sites. These advantages include: [lists 9 bullets of advantages]...” (2016 ESA mitigation policy)

(5) Alignment with 2008 Rules

“How should the proposed rule align with 2008 Rule provisions to maintain compatibility between mitigation banks and species banks where appropriate?” (ANPR)

What is relevant depends on the theme of interest to you. Here is a theme we touched on. 

Factors Used to Evaluate Mitigation

5.6.3.1 Equivalent Standards. “...any compensatory mitigation mechanism should incorporate, address, or identify the following that are intended to ensure successful implementation and durability” and then lists elements like site selection, site protection instruments, performance standards, financial assurances, and more (2016 FWS mitigation policy, Section 5.6.3.1 a - l)

(6) Banking on Federal and Tribal Lands

“How should the Service address potential bank projects on Federal and Tribal lands or on other lands with unique ownership considerations and/ or some degree of existing protection?” (ANPR)

Section 5.7.2 “Recommendations for Locating Compensatory Mitigation on Public or Private Lands… The Service generally only supports locating compensatory mitigation on (public or private) lands that are already designated for the conservation of natural resources if additionality (see section 6, Definitions) is clearly demonstrated and is legally attainable…” The section provides further details on conditions necessary to recommend compensatory mitigation on public lands: “The Service may recommend compensating for private land impacts to evaluation species on public lands (whether designated for conservation of natural resources or not) when: a. Compensation is an appropriate means of achieving the mitigation planning goal, as specified in this Policy; b. the compensatory mitigation would provide additional conservation benefits above and beyond measures the public agency is foreseeably expected to implement absent the mitigation (only such additional benefits are counted towards achieving the mitigation planning goal); c. the additional conservation benefits are durable, i.e., lasting as long as the impacts that prompted the compensatory mitigation; d. consistent with and not otherwise prohibited by all relevant statutes, regulations, and policies; and e. the public land location would provide the best possible conservation outcome, such as when private lands suitable for compensatory mitigation are unavailable or are available but do not provide an equivalent or greater contribution towards offsetting the impacts to meet the mitigation planning goal for the evaluation species. Ensuring the durability of compensatory mitigation on public lands may require multiple tools beyond land use plan designations, including right-of-way grants, withdrawals, disposal or lease of land for conservation, conservation easements, cooperative agreements, and agreements with third parties. Mechanisms to ensure durability of land protection for compensatory mitigation on public and private lands vary among agencies, but should preclude conflicting uses and ensure that protection and management of the mitigation land is commensurate with the magnitude and duration of impacts.” (2016 FWS mitigation policy).

Section 6.2.2. “Use of Public Land To Mitigate Impacts on Private Land. In general, the Service supports compensatory mitigation on public lands that are already designated for the conservation of natural resources to offset impacts to the species on private lands only if additionality is clearly demonstrated and is legally attainable. Additionality is a reasonable expectation that the conservation benefits associated with the compensatory mitigation actions would not occur in the foreseeable future without those actions. Offsetting impacts to private lands by locating compensatory mitigation on public lands already designated for conservation purposes generally risks a long-term net loss in landscape capacity to sustain species (e.g., future reduction in the range of the species) by relying increasingly on public lands to serve conservation purposes. However, we recognize under certain circumstances this offset arrangement may provide the best possible conservation outcome for the species based on best available science. When this is the case, the Service will consider mitigation on public lands to offset impacts to the species on private lands appropriate if: • Compensatory mitigation is an appropriate means of achieving the mitigation planning goal for the species; • Additionality can be clearly demonstrated and quantified, and is supplemental to conservation the public agency is foreseeably expected to implement absent the mitigation (only conservation benefits that provide additionality are counted towards achieving the mitigation planning goal); • Durability of the compensatory mitigation is ensured (see section 6.2.3. Ensuring Durability on Public Lands); • It is consistent with and not otherwise prohibited by all relevant statutes, regulations, and policies; and • Private lands suitable for compensatory mitigation are unavailable or are available but cannot provide an equivalent or greater contribution towards offsetting the impacts to meet the mitigation planning goal for the species…” (2016 ESA mitigation policy)

6.2.5 Compensatory Mitigation on Tribal Lands. “Tribal lands are generally eligible as compensatory mitigation sites if they meet the standards and other requirements set forth in this policy. Ensuring durability, particularly site protection, is usually a sensitive issue for a tribal nation because a conservation easement entrusts the land to another entity (Terzi 2012) because conservation easement entrusts the land to another entity (Terzi 2012), but acceptable entities may be available to hold easements. Additional guidance regarding mitigation and tribes is included in the Service’s Mitigation Policy (81 FR 83440, November 21, 2016). (2016 ESA mitigation policy)