On January 14, 2011, the President’s Council on Environmental Quality (CEQ) issued a guidance document on the National Environmental Policy Act (NEPA) captioned “Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact” (the “Mitigation and Monitoring Guidance”) (76 Fed. Reg. 3843 (Jan. 21, 2011)). The Mitigation and Monitoring Guidance is available on the CEQ NEPA website: www.nepa.gov.
The Mitigation and Monitoring Guidance is the final version of one of three guidance documents on NEPA issued by CEQ on February 18, 2010, in draft form for public review and comment. Of the other two guidance documents, one has since been issued in final form: “Final Guidance for Federal Agencies on Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act” (Nov. 23, 2010) (75 Fed. Reg. 75628 (Dec. 6, 2011)) (see our General Memorandum 11-005 (Jan. 14, 2011)). The other draft guidance document, “Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions,” is still open for comments from tribal governments (see our General Memorandum 11-009 (Jan. 28, 2011).
Overview. One of the purposes of NEPA is “to promote efforts which will prevent or eliminate damage to the environment and biosphere.” 42 U.S.C. § 4321. Mitigation measures can help to accomplish this. As defined in the CEQ regulations, 40 C.F.R. § 1508.20, mitigation includes:
- Avoiding the impact altogether by not taking a certain action or parts of an action.
- Minimizing impacts by limiting the degree or magnitude of the action and its implementation.
- Rectifying the impact by repairing, rehabilitating, or restoring the affected environment.
- Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action.
- Compensating for the impact by replacing or providing substitute resources or environments.
The Mitigation and Monitoring Guidance addresses mitigation in three different contexts. First, mitigation measures may be incorporated as an integral component of a proposed action, for example, when the proposed action includes standard best management practices such as those for controlling storm water runoff or fugitive dust emissions from construction sites. Second, mitigation measures may be developed through the process of developing alternatives in preparing an environmental assessment (EA) or environmental impact statement (EIS) as the agency analyzes the environmental consequences of the proposed action. Third, when preparing an EA for NEPA compliance, an agency may commit to mitigation measures in order to reduce the severity of adverse environmental impacts below the threshold at which they would “significantly” affect the quality of the environment. Based on such commitments, the agency could then issue a “mitigated” finding of no significant impact (FONSI) and thus avoid the need to prepare an EIS. When an agency decides to issue a mitigated FONSI, the Guidance recommends that the agency provide for public involvement in the EA and FONSI.
In addition to describing the contexts in which mitigation measures may be adopted, the Mitigation and Monitoring Guidance addresses how agencies can ensure that mitigation commitments are implemented and how agencies can remedy mitigation that proves to be ineffective or which is simply not implemented. With respect to ensuring that mitigation commitments are implemented, CEQ recommends that agencies consider establishing a mitigation monitoring program, to make sure that the mitigation commitments are implemented and to monitor their effectiveness in achieving expected outcomes. While the lead Federal agency bears the ultimate responsibility for monitoring mitigation, certain roles can be performed by other entities, including cooperating agencies, non-federal government agencies (state, local, tribal), grantees, permit holders, academic institutions, and non-governmental organizations.
CEQ recognizes that agencies may not have the resources to implement monitoring plans in every case. In the context of a “mitigated” FONSI, monitoring is “essential” where mitigation is necessary to support a FONSI. More generally, the Mitigation and Monitoring Guidance says that agencies should apply professional judgment and the rule of reason in identifying “those cases that are “important” and warrant monitoring” and in determining the type and extent of monitoring. The Guidance lists several factors that should be considered in determining whether a case is “important” in this sense: legal requirements of statutes, regulations, or permits; human health and safety; protected resources (e.g., parks, threatened or endangered species, cultural or historic sites); degree of public interest or debate; and level of intensity of impacts.
With respect to remedying mitigation that proves to be ineffective or is not implemented, the Guidance notes that, if the Federal agency retains authority over the action, the failure of mitigation may require a supplementary NEPA document (either an EA or EIS), and that the agency must avoid actions with adverse environmental impacts while the appropriate document is prepared. An agency may retain authority over a project through conditions on funding, permits, or other approvals.
If you would like further information regarding the Mitigation and Monitoring Guidance, please contact us.