Friday, March 5, 2010

Draft Mitigation Requirements Under NEPA

The Council on Environmental Quality (“CEQ”) has issued its “Draft Mitigation Guidance” outlining requirements for monitoring and reporting the status of substantive mitigation of impacts identified following NEPA reviews. CEQ will accept public comments on the Draft Mitigation Guidance until May 24, 2010.

CEQ’s Draft Mitigation Guidance directs federal agencies, during the environmental review process to:

  • Establish binding commitments for mitigating adverse environmental impacts identified by the reviewing agencies, and to enforce those commitments through their existing legal authorities;
  • Monitor (or require monitoring of) the implementation and effectiveness of mitigation measures; and
  • Make the results of their monitoring available to the public, preferably through the lead agency’s web site.

NEPA regulations define “mitigation” as measures to avoid, minimize, rectify, reduce, or compensate for environmental impacts. The regulations require that a federal agency discuss possible mitigation measures in defining the scope of an EIS, in discussing alternatives to the proposed action and the consequences of the proposed action and its alternatives, and in explaining its ultimate decision.

The Draft Mitigation Guidance would direct agencies to create, as part of their NEPA implementing procedures, processes to ensure that mitigation actions relied upon in a mitigated FONSI (“Finding of No Significant Impact”) or that are part of the proposed action in an EIS are documented, and that implementation plans are created to ensure the mitigation is carried out. The guidance directs that the mitigation commitment be clearly documented in NEPA documents and in decision documents such as the Record of Decision. The guidance also suggests methods for ensuring that mitigation is implemented, such as attaching conditions to financial agreements, grants, permits, or other approvals, or conditioning federal funding on implementing mitigation.

The draft guidance also calls for inclusion of adaptive management as part of the agency’s action, so that some response may be required if mitigation fails. It suggests that if mitigation supporting a mitigated FONSI fails, then an EIS may be required. It concludes that the agency decision should be structured so that a substantial mitigation failure triggers further action by the agency.

The existing NEPA regulations require agencies may provide for monitoring to assure that their decisions are carried out and should do so in important cases. The Draft Mitigation Guidance identifies two forms of monitoring: implementation and effectiveness. The objective of implementation monitoring is to document that promised mitigation is actually carried out. Effectiveness monitoring is more qualitative: it should evaluate whether the mitigation achieves its objectives.

The existing NEPA regulations also indicate that “upon request” lead agencies should make available to the public the results of relevant monitoring. The Draft Mitigation Guidance seeks to convert this duty to respond into an affirmative obligation to push information on mitigation monitoring out to the public.

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