The Council on Environmental Quality (CEQ) issued new guidance to federal agencies implementing the National Environmental Policy Act (NEPA) on two topics: tracking mitigation and use of mitigation in the context of a Finding of No Significant Impact (FONSI). The guidance became effective through publication in the Federal Register on January 21, 2011 (76 Fed. Reg. 3843).
With regard to tracking mitigation, CEQ noted that when agencies adopt mitigation but do not document and track the implementation of the mitigation, NEPA is undermined in two important ways. First, NEPA’s purposes of informed and transparent decision-making is not furthered if there is no means to determine whether adopted mitigation was implemented and effective. Second, the failure to document and monitor mitigation may also “undermine the integrity of NEPA review.” The guidance is intended to address these concerns, and suggests agencies adopt specific mitigation planning and implementation procedures. With regard to FONSIs, prior guidance had suggested that “mitigated FONSIs,” akin to mitigated negative declarations under the California Environmental Quality Act, were improper under NEPA: “previously issued CEQ guidance … suggested that the existence of mitigation measures developed during the scoping or EA stages ‘does not obviate the need for an EIS.” This guidance modifies that prior guidance, and expressly approves the common practice of the “‘mitigated FONSI’ when the NEPA process results in enforceable mitigation measures.”
CEQ recommends that agencies adopt NEPA implementing procedures that include mechanisms:
To ensure that mitigation commitments are met;
To monitor the effectiveness of mitigation commitments;
To remedy failed mitigation; and
To involve the public in mitigation planning.
CEQ recommends that mitigation commitments be carefully documented, that internal policies be established to assure that relevant funding, permitting, or other agency approvals be made conditional on the performance of mitigation commitments. The commitment to mitigation should include details as to when and how the mitigation commitments will be implemented and that performance standards or outcomes be carefully described. Funding sources should be identified where possible, and the likelihood of future funding shortfalls should be disclosed in the environmental document. Moreover, if the mitigation is essential to a finding (i.e., mitigated FONSI), then the project should not move forward until funding becomes available or the lack of funding assessed.
CEQ notes that the establishment of a mitigation monitoring program can improve the overall quality of decision-making. Monitoring can help identify means for mitigation improvement in a larger sense as well as in the context of a project. For instance, in the latter context, monitoring can assist in the development and implementation of an adaptive management approach, such that failed mitigation can be replaced with alternative mitigation. CEQ suggests that agency procedures be modified to anticipate this possibility. Additionally, the agency may conclude based on failed mitigation, that such mitigation is not appropriate in other project contexts so that the failed strategy is not repeated many times over. For these reasons, CEQ proposes that agencies adopt procedures for monitoring the effectiveness of mitigation. CEQA notes that monitoring is especially critical where mitigation is necessary to support a FONSI and thus is part of a justification for the agency’s determination not to prepare an EIS. In sum, the monitoring program should track not only whether mitigation is implemented but whether it is effective.
Finally, the guidance suggests that this monitoring process and data should be a public and transparent process. Agencies are encouraged to include the public in the monitoring process and to make collected data available to the public through print and online sources.