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DOC/NOAA RIN: 0648-BJ32 Publication ID: Fall 2019 
Title: ●NOAA Mitigation Policy  
Abstract:

Mitigation is often required to offset adverse environmental impacts from activities authorized under federal statutes, including NOAA authorities.  Landowners and mitigation providers have asked for more predictability and consistency in mitigation actions taken by NOAA and other federal agencies under a variety of statutes. NOAA does not have a national policy on mitigation, and therefore mitigation approaches vary from region to region and program to program. A NOAA Mitigation Policy (Policy) is intended to improve the predictability and consistency sought by regulated entities, and will also reduce the risk of uncompensated impacts to trust resources due to ineffective mitigation. The Policy is also intended to facilitate the establishment of environmental banks - banks that provide mitigation for the requirements of multiple authorities - which improves the efficiency of regulatory compliance.

 
Agency: Department of Commerce(DOC)  Priority: Other Significant 
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: No 
EO 13771 Designation: Other 
CFR Citation: None     (To search for a specific CFR, visit the Code of Federal Regulations.)
Legal Authority: 42 U.S.C. 9601 et seq.    16 U.S.C. 1531 et seq.    16 U.S.C. 1801 et seq.    16 U.S.C. 1361 et seq.    ...   
Legal Deadline:  None

Statement of Need:

Mitigation is often required to offset adverse environmental impacts from activities authorized under federal statutes, including NOAA authorities.  Landowners and mitigation providers have asked for more predictability and consistency in mitigation actions taken by NOAA and other federal agencies under a variety of statutes. NOAA does not have a national policy on mitigation, and therefore mitigation approaches vary from region to region and program to program. A NOAA Mitigation Policy (Policy) is intended to improve the predictability and consistency sought by regulated entities, and will also reduce the risk of uncompensated impacts to trust resources due to ineffective mitigation. The Policy is also intended to facilitate the establishment of environmental banks--banks that provide mitigation for the requirements of multiple authorities--which improves the efficiency of regulatory compliance.

Summary of the Legal Basis:

NOAA has authorities relevant to the conservation of a broad range of fish and wildlife resources. These authorities are codified under multiple statutes that address management and conservation of natural resources, including the effects of land, water, and energy development on fish, wildlife, plants, and their habitats. These include:

  • Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. section 9601 et seq.
  • Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.
  • Federal Power Act, 16 U.S.C. 791-828c.
  • Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. 1251 et seq.
  • Fish and Wildlife Coordination Act, as amended, 16 U.S.C 661-667(e).
  • Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.1801 et seq.
  • Marine Mammal Protection Act, as amended, 16 U.S.C. 1361 et seq.
  • National Marine Sanctuaries Act, 16 U.S.C. 1413 et seq.
  • Oil Pollution Act, 33 U.S.C. section 2701 et seq.

Alternatives:

Alternatives considered included: 1) status quo, or not developing a NOAA Mitigation Policy and 2) developing a National Marine Fisheries Service Mitigation Policy instead of a NOAA Policy. Neither of these options will address the need for consistent and predictable mitigation practices across all relevant NOAA programs and regions.

Anticipated Costs and Benefits:

There are no anticipated immediate or recurring costs because this Policy is administrative in nature and does not expand existing authorities, programs, or effects. Benefits of the Policy will accrue through the increased effectiveness and efficiency of NOAA’s mitigation practices. We also anticipate decreased administrative costs for landowners and mitigation providers, but no data exist for quantifying this benefit. Non-monetized benefits will include increased conservation of habitat for trust resources as well as more predictable outcomes for those undertaking the actions for which mitigation is necessary.

Risks:

The current lack of a national NOAA Mitigation Policy creates uncertainty among stakeholders and may limit innovative mitigation approaches such as multi-purpose private sector-funded mitigation banks. The risk of not preparing the NOAA Mitigation Policy lies in missed opportunities for private-sector investment in habitat restoration and species conservation.

Timetable:
Action Date FR Cite
Draft Policy  12/00/2019 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: None 
Federalism: No 
Included in the Regulatory Plan: Yes 
RIN Data Printed in the FR: No 
Agency Contact:
Patricia A. Montanio
Director, Office of Habitat Conservation
Department of Commerce
National Oceanic and Atmospheric Administration
Room 8268, National Marine Fisheries Service, 1315 East-West Highway,
Silver Spring, MD 20910
Phone:301 713-2325
Email: pat.montanio@noaa.gov