National Environmental Policy Act (“NEPA”), the Council on Environmental Quality (“CEQ”) issued new guidance (“Guidance”) on the appropriate use of mitigation in NEPA documents -- most importantly, upholding mitigation to support the preparation of a Findings of No Significance Impacts (“FONSI”) and accordingly, avoid more strenuous NEPA review -- and the monitoring of such mitigation measures. In the Guidance, the CEQ recognizes that NEPA does not mandate federal agencies mitigate adverse environmental effects. Nonetheless, the CEQ states that the Guidance was needed, in part, to “enhance the integrity and credibility of the NEPA process and the information upon which it relies.” CEQ also recommends that each federal agency incorporate measures into their respective NEPA guidelines to implement the Guidance. Highlights of the Guidance include:

Mitigation Incorporated into Project Design: The CEQ recognizes that mitigation is often incorporated into a project’s design in order to avoid adverse environmental effects. In such a case, mitigation should be clearly defined early in the decisionmaking process, if possible, to avoid more extensive NEPA review.

Mitigation Alternatives in an Environmental Assessment (“EA”) and an Environmental Impact Statement (“EIS”): An EIS requires that mitigation measures (not already part of the project design or an alternative) be considered as alternatives. When mitigation is used as an alternative in an EA or an EIS, federal agencies should not commit to such mitigation unless there is legal authority or sufficient resources to perform or ensure performance of the mitigation. A Notice of Record should be issued identifying adopted mitigation, as well as an enforcement and monitoring program.

Mitigation to Support a FONSI: When a federal agency identifies appropriate mitigation measures and commits to the performance and monitoring of the same, mitigation measures may be used to support the adoption of a FONSI, which avoids the preparation of an EIS. When mitigation is used to justify a FONSI, federal agencies should not commit to such mitigation unless there is legal authority or sufficient resources to perform or ensure performance of the mitigation. In addition to the required 30-day review period for a FONSI, public participation during the preparation of EA and FONSI process should be provided and federal agencies should make the EA and FONSI available to the public (posting the document to the agency’s website).

Implementation of Mitigation: Federal agencies should develop an internal process to ensure the full implementation of mitigation measures and any funding, permitting and other agency approval should be made conditions of mitigation performance. If federal funding may not be available during the life of the project and the mitigation measure at issues requires federal funding, the agency should disclose this fact. If the mitigation at issue is being used to support preparation of a FONSI or is necessary to comply with other legal requirements, then an EIS should be prepared. Clear documentation of mitigation measures, as well as when and how mitigation measures will be implemented must also be included in the NEPA document. In addition, mitigation measures should include performance standards or expected results. A mitigation monitoring program that is tracked by the federal agency, although not required, should be adopted for all NEPA documents. In accordance with the Freedom of Information Act, mitigation monitoring information should be public information. Remedies for ineffective mitigation should also be implemented.

For a full text copy of the Guidance, click here.