Federal Register, Volume 76 Issue 14 (Friday, January 21, 2011)

[Federal Register Volume 76, Number 14 (Friday, January 21, 2011)]
[Rules and Regulations]
[Pages 3843-3853]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1188]

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COUNCIL ON ENVIRONMENTAL QUALITY

40 CFR Parts 1500, 1501, 1502, 1505, 1506, 1507, and 1508

Final Guidance for Federal Departments and Agencies on the
Appropriate Use of Mitigation and Monitoring and Clarifying the
Appropriate Use of Mitigated Findings of No Significant Impact

AGENCY: Council on Environmental Quality.

ACTION: Notice of availability.

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SUMMARY: The Council on Environmental Quality (CEQ) is issuing its
final guidance for Federal departments and agencies on the appropriate
use of mitigation in Environmental Assessments (EAs) and Environmental
Impact Statements (EISs) under the National Environmental Policy Act
(NEPA). The guidance was developed to modernize, reinvigorate, and
facilitate and increase the transparency of NEPA implementation.
This guidance outlines principles Federal agencies should apply in
the development of their NEPA implementing regulations and procedures
to guide their consideration of measures to mitigate adverse
environmental impacts in EAs and EISs; their commitments to carry out
mitigation made in related decision documents, such as the Record of
Decision; the implementation of mitigation; and the monitoring of
mitigation outcomes during and after implementation. This guidance also
outlines principles agencies should apply to provide for public
participation and accountability in the development and implementation
of mitigation and monitoring efforts that are described in their NEPA
documentation. Mitigation commitments should be explicitly described as
ongoing commitments and should specify measurable performance standards
and adequate mechanisms for implementation, monitoring, and reporting.
In addition, this guidance affirms the appropriateness of what is
traditionally referred to as a ``mitigated Finding of No Significant
Impact.'' Mitigated Findings of No Significant Impact (FONSIs) can
result when an agency concludes its NEPA review with an EA that is
based on a commitment to mitigate significant environmental impacts, so
that a more detailed EIS is not required. As explained in this
guidance, an agency does not have to prepare an EIS when the
environmental impacts of a proposed action can be mitigated to a level
where the agency can make a FONSI determination, provided that the
agency or a project applicant commits to carry out the mitigation, and
establishes a mechanism for ensuring the mitigation is carried out.
When a FONSI depends on successful mitigation, the requisite mitigation
commitments should be made public.

DATES: The guidance is effective January 21, 2011.

FOR FURTHER INFORMATION CONTACT: The Council on Environmental Quality
(ATTN: Horst Greczmiel, Associate Director for National Environmental
Policy Act Oversight), 722 Jackson Place, NW., Washington, DC 20503.
Telephone: (202) 395-5750.

SUPPLEMENTARY INFORMATION: This guidance applies to Federal agencies in
accordance with sections 1507.2 and 1507.3 of the CEQ Regulations
Implementing the Procedural Provisions of the National Environmental
Policy Act, 40 CFR Parts 1500-1508. The National Environmental Policy
Act (NEPA), 42 U.S.C. 4321-4370, enacted in 1970, is a fundamental tool
used to harmonize our environmental, economic, and social aspirations
and is a cornerstone of our Nation's efforts to protect the
environment. NEPA recognizes that many Federal activities affect the
environment and mandates that Federal agencies consider the
environmental impacts of their proposed actions before deciding to
adopt proposals and take action. Additionally, NEPA emphasizes public
involvement in government actions affecting the environment by
requiring that the benefits and risks associated with proposed actions
be assessed and publicly disclosed.
The Council on Environmental Quality (CEQ) is charged with
overseeing NEPA's implementation by Federal agencies. CEQ recognizes
that NEPA is a visionary and versatile law that can be used effectively
to address new environmental challenges facing our nation and also to
engage the public widely and effectively. Furthermore, CEQ recognizes
that successful NEPA implementation requires agencies to make
information accessible to the public to strengthen citizen involvement
in government decisionmaking. This guidance is designed to facilitate
agency compliance with NEPA, by clarifying the commitments agency
decisionmakers may decide to make when complying with NEPA, and
ensuring that information about those commitments is accurate and made
available to the public.
On February 18, 2010, CEQ announced the issuance of three

[[Page 3844]]

proposed draft guidance documents to modernize and reinvigorate NEPA,
in conjunction with the 40th anniversary of the statute's enactment.\1\
This guidance document is the second of those three to be issued in
final form. The first guidance document, on ``Establishing, Applying,
and Revising Categorical Exclusions Under the National Environmental
Policy Act,'' was released in final form on November 23, 2010.\2\ The
third guidance document, which addresses when and how Federal agencies
should consider greenhouse gas emissions and climate change in their
proposed actions, will be the next and last guidance document of this
series to be finalized.
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\1\ For more information about this announcement, see http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa.
\2\ National Environmental Policy Act (NEPA) Final Guidance,
Establishing, Revising and Using Categorical Exclusions, 75 FR
75628, Dec. 6, 2010.
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In a Federal Register notice published on February 23, 2010, CEQ
announced the availability of the draft mitigation and monitoring
guidance and requested public comments.\3\ CEQ appreciates the
thoughtful responses it has received on the draft guidance. CEQ
received more than sixty comments. Commenters included private
citizens, corporations, environmental organizations, trade
associations, and federal and state agencies. All of these comments can
be viewed online at http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/comments. Those comments that suggested editorial
revisions or requested clarification of terms are addressed in the text
of the final guidance. Those comments that raised policy or substantive
concerns have been grouped thematically, summarized, and addressed in
the following sections of this Notice.
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\3\ Draft Guidance for NEPA Mitigation and Monitoring, 75 FR
8046, Feb. 23, 2010.
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Mitigation Planning

Some commenters expressed concern that this guidance would impose
an obligation on agencies to develop detailed mitigation plans as a
standard part of every EA and EIS process. Several commenters asserted
that a detailed mitigation planning stage would needlessly increase
complexity and reduce project flexibility. Commenters also suggested
that mitigation planning might actually decrease mitigation
effectiveness, as the burden created would pressure agencies, as well
as applicants, to undertake less comprehensive mitigation.
This guidance provides a flexible template for the development of
agency regulations and procedures allowing continued discretion for
agencies to respond to individual project characteristics. Not every EA
or EIS will require the development of detailed mitigation plans. Plans
should be developed and implemented when mitigation described in an EA
serves as the basis for the FONSI (that is, the effects might be
significant but for the proposed mitigation). CEQ disagrees that
increased attention to mitigation planning in appropriate circumstances
will needlessly increase complexity or reduce project flexibility.
Rather, the purpose of detailed mitigation planning is to ensure that
mitigation plans appropriately reflect project or program
characteristics, and careful consideration of a range of options for
adequate implementation and monitoring should increase agency
flexibility in responding to changing or unforeseen circumstances. CEQ
also disagrees that increased attention to mitigation planning would
decrease mitigation effectiveness. To the extent that this guidance may
prompt agencies to propose actions with lesser adverse environmental
impacts allowing for the selection of less comprehensive (or no)
mitigation alternatives, such a response would likely indicate that
agencies have appropriately structured their proposed actions to avoid
and minimize impacts up front to the extent feasible. This is the
fundamental goal of NEPA. This would increase rather than decrease the
likelihood that mitigation would be effective. Furthermore, CEQ
believes that a focus on monitoring will help to ensure the actual
effectiveness of proposed mitigation efforts. The guidance has been
revised to ensure that agencies focus on establishing monitoring plans
for important cases.

Source of Agency Authority To Make Mitigation Commitments

Several commenters, citing Robertson v. Methow Valley Citizens
Council, 490 U.S. 332 (1989), expressed concern that the tone and
wording of this guidance reframes NEPA by imposing substantive rather
than procedural requirements. Another commenter suggested that if an
agency would lack future authority to rectify a substantial mitigation
failure, then that lack of authority should be included in the agency's
initial analysis of impacts, significance, and mitigation
effectiveness.
This guidance is not intended to impose new substantive
requirements on agencies or project applicants. Rather, it ensures that
the public and decisionmakers are fully informed of any promised
mitigation and an agency's clear commitment to perform or ensure the
performance of that mitigation, which in turn strengthens the basis for
the NEPA analysis and documentation that an agency has prepared. This
guidance is designed to enhance the integrity of the NEPA analysis when
it relies on mitigation. It is an agency's underlying authority that
provides the basis for the agency to commit to perform or require the
performance of particular mitigation. That authority also allows the
agency to implement and monitor, or to require the implementation and
monitoring of, those mitigation commitments to ensure their
effectiveness. It further provides the authority to take remedial
steps, so long as there remains federal decisional involvement in a
project or other proposed action. The guidance has been revised to
further clarify that existing authorities provide the basis for agency
commitments to implement mitigation and monitor its success.
NEPA in itself does not compel the selection of a mitigated
approach. But where an agency chooses to base the use of less extensive
NEPA analysis on mitigation, then this guidance is designed to assist
agencies in ensuring the integrity of that decision.

Use of Outside Experts

Several commenters requested that in recommending the use of third
party experts, this guidance should clarify that such experts should be
neutral and unbiased parties without conflicts of interest. For
example, third party experts participating in development of mitigation
and monitoring plans should not have financial stakes in the
implementation of the mitigation and monitoring. CEQ agrees with this
suggestion but also recognizes that applicants and delegated parties
can, in appropriate circumstances, participate in the development and
implementation of mitigation and monitoring. The text of this guidance
document has been edited to address and incorporate these concerns.

Effect of Non-Implemented or Ineffective Mitigation

Several commenters asserted that the guidance document was too
rigid in providing guidelines for agencies to use when adopting
regulations and procedures for responses to mitigation failure. These
commenters argued that flexibility should be allowed in response to
mitigation failure, with the type of response dependent upon the
project's size and scope. Some comments additionally argued that a
``NEPA restart'' should not be required in response to mitigation
failure, and

[[Page 3845]]

that any such requirement lacked legal basis.
Mitigation failure occurs when a previously adopted mitigation
commitment has not been implemented or is not as effective as predicted
in lessening the significance of the impacts. Where an EA with a
mitigated FONSI was predicated on the implementation of the mitigation,
failure of that mitigation calls into question the basis for the FONSI
because impacts were not reduced to below the level of significance in
the manner anticipated. In the case of other EAs and EISs, mitigation
failure could similarly indicate mistaken environmental consideration
in the original analysis. In any case, this guidance imposes no
requirement to restart a NEPA process; rather, it suggests that if
there is Federal action remaining, it is appropriate for agencies to
consider preparing supplemental NEPA analysis and documentation and to
pursue remaining opportunities to address the effects of that remaining
action. The agency should also consider whether it is appropriate for
future NEPA analyses to consider the mitigation failure in order to
ensure that unsupported assumptions about mitigation outcomes are not
included in future analyses and documentation. Subsequent environmental
baselines must, of course, reflect true conditions, as informed by any
past experience with mitigation results. The guidance has been revised
to include recommendations that agencies employ adaptive management or
assess multiple mitigation alternatives, so that they have already-
developed options they can use to address situations where mitigation
is not implemented or is not as effective as predicted in the NEPA
analysis.
Another commenter felt that the document does not clearly
distinguish between the role of mitigation in support of a mitigated
FONSI and the role of mitigation in other circumstances. The guidance
now discusses mitigated FONSIs and other mitigation commitments in
separate sections and the text has been revised to clearly distinguish
between those two scenarios.

Clarity With Respect to Mitigation

One commenter asserted that clarification is needed to understand
the exact nature of many mitigation measures. This commenter suggested
explicitly amending the guidance document to require unambiguous and
exact language in explaining potential and adopted mitigation. Although
CEQ cannot mandate exact requirements for every agency or project, CEQ
agrees with this commenter that individual agency regulations and
procedures should require mitigation to be clearly described where
appropriate and mitigation goals to be carefully specified in terms of
measurable performance standards to the greatest extent possible. No
change to the guidance has been made in response to this comment.
Other commenters suggested providing additional guidelines to
clarify how the principles in the guidance would apply to various types
of multi-agency projects, in which lead federal agencies may rely in
part on NEPA work done by co-lead or cooperating agencies. CEQ cannot
specify how this guidance should apply in every situation. CEQ views
the guidance as appropriately clear; each individual agency should,
based on existing authority, work to ensure appropriate cooperation
with other agencies in the development and implementation of mitigation
and monitoring. Specifically, the guidance notes that mitigation and
monitoring authority may be shared among joint lead or cooperating
agencies ``so long as the oversight is clearly described in the NEPA
documents or associated decision documents'' and ``responsible parties,
mitigation requirements, and any appropriate enforcement clauses are
included in documents such as authorizations, agreements, permits or
contracts.'' With respect to public engagement, the guidance states
that ``it is the responsibility of the lead agency to make the results
of relevant monitoring available to the public.'' No change to the
guidance has been made in response to these comments.

Monitoring Mitigation

One commenter requested that the guidance define ``important'' in
40 CFR 1505.3, which states that agencies should provide for monitoring
in ``important cases.'' CEQ appreciates this concern. Because of the
wide range of situations in which NEPA is applied, it would be
difficult to define in advance what cases are ``important,'' and CEQ
has edited the guidance document to note that agencies should apply
professional judgment and the rule of reason in determining which cases
are ``important.''
Other commenters noted that analyzing resource conditions prior to
implementation can be useful in providing a baseline for judgments of
mitigation effectiveness during the monitoring stage. CEQ agrees and
has added language to the guidance incorporating this suggestion.

Public Participation in Mitigation Implementation and Monitoring

A number of comments addressed the role of the public in mitigation
implementation and monitoring. Some commenters felt that allowing the
public to directly participate in this process could present safety
risks. The guidance states that public participation in mitigation
implementation and monitoring should be provided where appropriate.
Public involvement will not be appropriate in every situation, and the
guidance was left unchanged.
Others felt that the guidance's discussion of the release of
monitoring results could inappropriately encourage the release of
confidential information or that the need for public access could be
met by relying on citizen requests rather than affirmative reporting by
agencies. The guidance does not require that all information be
released in every instance, and CEQ believes that agencies will be able
to balance their responsibilities to provide opportunities for public
participation under the Freedom of Information Act (FOIA), NEPA, CEQ
regulations and this guidance with the need to protect confidential
information as appropriate. CEQ notes, however, that environmental
monitoring results are rarely considered confidential information and
are explicitly required to be made available to the public under some
environmental statutes. The guidance has been changed to include the
need to balance competing privacy or confidentiality concerns with the
benefits of public disclosure.

Definition of Significant

A number of commenters requested that CEQ provide additional
guidance on the meaning of ``significant'' impacts. CEQ has already
issued regulations on this, e.g., in 40 CFR 1508.27. No change to the
guidance has been made in response to these comments.

Inclusion of Appendix or Examples

Several commenters suggested supplementing the Appendix with
additional examples of agency practices or regulations in addition to
the Department of the Army regulations detailed in the proposed
guidance. Objections to the example were made based on concerns that
the example is focused on actions an agency would directly perform, and
that the example is a regulation and thereby implies that mitigation
and monitoring must be established through a regulatory process. While
CEQ appreciates the suggestions, we believe the Department of the Army
regulations detailed in the

[[Page 3846]]

proposed guidance provide a clear and useful example and that the
addition of other examples is unnecessary. Text introducing the example
was added to address the regulatory concern.

The Final Guidance

For reasons stated in the preamble, above, CEQ issues the following
guidance on the Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No Significant
Impact. The final guidance is provided here and is available on the
National Environmental Policy Act Web site (http://www.nepa.gov) at
http://ceq.hss.doe.gov/ceq_regulations/guidance.html and on the CEQ
Web site at http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa.

Memorandum for Heads of Federal Departments and Agencies

From: Nancy H. Sutley, Chair, Council on Environmental Quality.
Subject: Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No Significant
Impact.
The Council on Environmental Quality (CEQ) is issuing this guidance
for Federal departments and agencies on establishing, implementing, and
monitoring mitigation commitments identified and analyzed in
Environmental Assessments, Environmental Impact Statements, and adopted
in the final decision documents. This guidance also clarifies the
appropriate use of mitigated ``Findings of No Significant Impact''
under the National Environmental Policy Act (NEPA). This guidance is
issued in accordance with NEPA, 42 U.S.C. 4321 et seq., and the CEQ
Regulations for Implementing the Procedural Provisions of NEPA (CEQ
Regulations), 40 CFR Parts 1500-1508.\4\ The guidance explains the
requirements of NEPA and the CEQ Regulations, describes CEQ policies,
and recommends procedures for agencies to use to help them comply with
the requirements of NEPA and the CEQ Regulations when they establish
mitigation planning and implementation procedures.\5\
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\4\ The Council on Environmental Quality (CEQ) Regulations for
Implementing the Procedural Provisions of the National Environmental
Policy Act (CEQ Regulations) are available on http://www.nepa.gov at
http://ceq.hss.doe.gov/ceq_regulations/regulations.html.
\5\ CEQ is issuing this guidance as an exercise of its duties
and functions under section 204 of the National Environmental Policy
Act (NEPA), 42 U.S.C. 4344, and Executive Order No. 11,514, 35 FR
4,247 (Mar. 5, 1970), as amended by Executive Order No. 11,991, 42
FR 26,927 (May 24, 1977). This guidance is not a rule or regulation,
and the recommendations it contains may not apply to a particular
situation based upon the individual facts and circumstances. This
guidance does not change or substitute for any law, regulation, or
other legally binding requirement and is not legally enforceable.
The use of language such as ``recommend,'' ``may,'' ``should,'' and
``can'' is intended to describe CEQ policies and recommendations.
The use of mandatory terminology such as ``must'' and ``required''
is intended to describe controlling requirements under the terms of
NEPA and the CEQ Regulations, but this document does not
independently establish legally binding requirements.
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NEPA was enacted to promote efforts that will prevent or eliminate
damage to the human environment.\6\ Mitigation measures can help to
accomplish this goal in several ways. Many Federal agencies and
applicants include mitigation measures as integral components of a
proposed project's design. Agencies also consider mitigation measures
as alternatives when developing Environmental Assessments (EA) and
Environmental Impact Statements (EIS). In addition, agencies have
increasingly considered mitigation measures in EAs to avoid or lessen
potentially significant environmental effects of proposed actions that
would otherwise need to be analyzed in an EIS.\7\ This use of
mitigation may allow the agency to comply with NEPA's procedural
requirements by issuing an EA and a Finding of No Significant Impact
(FONSI), or ``mitigated FONSI,'' based on the agency's commitment to
ensure the mitigation that supports the FONSI is performed, thereby
avoiding the need to prepare an EIS.
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\6\ 42 U.S.C. 4321 (stating that the purposes of NEPA include
promoting efforts which will prevent or eliminate damage to the
environment).
\7\ This trend was noted in CEQ's Twenty-Fifth Anniversary
report on the effectiveness of NEPA implementation. See CEQ, ``NEPA:
A Study of its Effectiveness After Twenty-Five Years'' 20 (1997),
available at http://ceq.hss.doe.gov/nepa/nepa25fn.pdf.
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This guidance addresses mitigation that an agency has committed to
implement as part of a project design and mitigation commitments
informed by the NEPA review process. As discussed in detail in Section
I, below, agencies may commit to mitigation measures considered as
alternatives in an EA or EIS so as to achieve an environmentally
preferable outcome. Agencies may also commit to mitigation measures to
support a mitigated FONSI, so as to complete their review of
potentially significant environmental impacts without preparing an EIS.
When agencies do not document and, in important cases, monitor
mitigation commitments to determine if the mitigation was implemented
or effective, the use of mitigation may fail to advance NEPA's purpose
of ensuring informed and transparent environmental decisionmaking.
Failure to document and monitor mitigation may also undermine the
integrity of the NEPA review. These concerns and the need for guidance
on this subject have long been recognized.\8\ While this guidance is
designed to address these concerns, CEQ also acknowledges that NEPA
itself does not create a general substantive duty on Federal agencies
to mitigate adverse environmental effects.\9\
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\8\ See, e.g., CEQ, 1987-1988 Annual Report, available at http://www.slideshare.net/whitehouse/august-1987-1988-the-eighteenth-annual-report-of-the-council-on-environmental-quality (stating that
CEQ would issue guidance on the propriety of an Environmental
Assessment (EA) and Finding of No Significant Impact (FONSI) rather
than requiring an Environmental Impact Statement (EIS) when the
environmental effects of a proposal are significant but mitigation
reduces those impacts to less than significant levels). In 2002, CEQ
convened a Task Force on Modernizing NEPA Implementation, which
recommended that CEQ issue guidance clarifying the requirements for
public involvement, alternatives, and mitigation for actions that
warrant longer EAs including those with mitigated FONSIs. CEQ NEPA
Task Force, ``Modernizing NEPA Implementation'' 75 (2003), available
at http://ceq.hss.doe.gov/ntf/report/totaldoc.html. NEPA experts and
public stakeholders have expressed broad support for this
recommendation, calling for consideration of monitoring and public
involvement in the use of mitigated FONSIs. CEQ, ``The Public and
Experts' Review of the National Environmental Policy Act Task Force
Report `Modernizing NEPA Implementation''' 7 (2004), available at
http://ceq.hss.doe.gov/ntf/CEQ_Draft_Final_Roundtable_Report.pdf; see also CEQ, ``Rocky Mountain Roundtable Report'' 8
(2004), available at http://ceq.hss.doe.gov/ntf/RockyMtnRoundTableReport.pdf (noting that participants in a regional
roundtable on NEPA modernization identified ``developing a means to
enforce agency commitments to monitoring and mitigation'' as one of
the top five aspects of NEPA implementation needing immediate
attention); ``Eastern Round Table Report'' 4 (2003), available at
http://ceq.hss.doe.gov/ntf/EasternRoundTableReport.pdf (reporting
that, according to several panelists at a regional roundtable,
``parties responsible for monitoring the effects of * * * mitigation
measures are rarely identified or easily held accountable,'' and
that a lack of monitoring impedes agencies' ability to address the
cumulative effects of EA actions).
\9\ Robertson v. Methow Valley Citizens Council, 490 U.S. 332,
352 (1989).
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Accordingly, in conjunction with the 40th Anniversary of NEPA, CEQ
announced that it would issue this guidance to clarify the
appropriateness of mitigated FONSIs and the importance of monitoring
environmental mitigation commitments.\10\ This new guidance affirms
CEQ's support for the appropriate use of mitigated FONSIs, and
accordingly amends and supplements previously issued

[[Page 3847]]

guidance.\11\ This guidance is intended to enhance the integrity and
credibility of the NEPA process and the information upon which it
relies.
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\10\ CEQ, ``New Proposed NEPA Guidance and Steps to Modernize
and Reinvigorate NEPA'' (Feb. 18, 2010), available at http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa.
\11\ This previous guidance is found in CEQ, ``Forty Most Asked
Questions Concerning CEQ's National Environmental Policy Act
Regulations,'' 46 FR 18,026, Mar. 23, 1981, available at http://ceq.eh.doe.gov/nepa/regs/40/40P1.htm (suggesting that the existence
of mitigation measures developed during the scoping or EA stages
``does not obviate the need for an EIS'').
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CEQ provides several broad recommendations in Section II, below, to
help improve agency consideration of mitigation in EISs and EAs.
Agencies should not commit to mitigation measures considered in an EIS
or EA absent the authority or expectation of resources to ensure that
the mitigation is performed. In the decision documents concluding their
environmental reviews, agencies should clearly identify any mitigation
measures adopted as agency commitments or otherwise relied upon (to the
extent consistent with agency authority or other legal authority), so
as to ensure the integrity of the NEPA process and allow for greater
transparency.
Section III emphasizes that agencies should establish
implementation plans based on the importance of the project and its
projected effects. Agencies should create new, or strengthen existing,
monitoring to ensure that mitigation commitments are implemented.
Agencies should also use effectiveness monitoring to learn if the
mitigation is providing the benefits predicted. Importantly, agencies
should encourage public participation and accountability through
proactive disclosure of, and provision of access to, agencies'
mitigation commitments as well as mitigation monitoring reports and
related documents.
Although the recommendations in this guidance are broad in nature,
agencies should establish, in their NEPA implementing procedures and/or
guidance, specific procedures that create systematic accountability and
the mechanisms to accomplish these goals.\12\ This guidance is intended
to assist agencies with the development and review of their NEPA
procedures, by specifically recommending:
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\12\ 40 CFR 1507.3 (requiring agencies to issue, and continually
review, policies and procedures to implement NEPA in conformity with
NEPA and CEQ Regulations).
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How to ensure that mitigation commitments are implemented;
How to monitor the effectiveness of mitigation
commitments;
How to remedy failed mitigation; and
How to involve the public in mitigation planning.

Finally, to assist agencies in the development of their NEPA
implementing procedures, an overview of relevant portions of the
Department of the Army NEPA regulations is appended to this guidance as
an example for agencies to consider when incorporating the
recommendations of this guidance as requirements in their NEPA programs
and procedures.\13\
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\13\ See id; see also id. Sec. 1507.2 (requiring agencies to
have personnel and other resources available to implement NEPA
reviews and meet their NEPA responsibilities).
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I. The Importance of Mitigation Under NEPA

Mitigation is an important mechanism Federal agencies can use to
minimize the potential adverse environmental impacts associated with
their actions. As described in the CEQ Regulations, agencies can use
mitigation to reduce environmental impacts in several ways. Mitigation
includes:
Avoiding an impact by not taking a certain action or parts
of an action;
Minimizing an impact by limiting the degree or magnitude
of the action and its implementation;
Rectifying an impact by repairing, rehabilitating, or
restoring the affected environment;
Reducing or eliminating an impact over time, through
preservation and maintenance operations during the life of the action;
and
Compensating for an impact by replacing or providing
substitute resources or environments.\14\
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\14\ Id. Sec. 1508.20 (defining mitigation to include these
activities).
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Federal agencies typically develop mitigation as a component of a
proposed action, or as a measure considered in the course of the NEPA
review conducted to support agency decisionmaking processes, or both.
In developing mitigation, agencies necessarily and appropriately rely
upon the expertise and experience of their professional staff to assess
mitigation needs, develop mitigation plans, and oversee mitigation
implementation. Agencies may also rely on outside resources and experts
for information about the ecosystem functions and values to be
protected or restored by mitigation, to ensure that mitigation has the
desired effects and to develop appropriate monitoring strategies. Any
outside parties consulted should be neutral parties without a financial
interest in implementing the mitigation and monitoring plans, and
should have expert knowledge, training, and experience relevant to the
resources potentially affected by the actions and--if possible--the
potential effects from similar actions.\15\ Further, when agencies
delegate responsibility for preparing NEPA analyses and documentation,
or when other entities (such as applicants) assume such responsibility,
CEQ recommends that any experts employed to develop mitigation and
monitoring should have the kind of expert knowledge, training, and
experience described above.
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\15\ See id. Sec. 1506.5 (providing that agencies are
responsible for the accuracy of environmental information submitted
by applicants for use in EISs and EAs, and requiring contractors
selected to prepare EISs to execute disclosure statement specifying
that they have no financial or other interest in the outcome of the
project).
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The sections below clarify practices Federal agencies should use
when they employ mitigation in three different contexts: As components
of project design; as mitigation alternatives considered in an EA or an
EIS and adopted in related decision documents; and as measures
identified and committed to in an EA as necessary to support a
mitigated FONSI. CEQ encourages agencies to commit to mitigation to
achieve environmentally preferred outcomes, particularly when
addressing unavoidable adverse environmental impacts. Agencies should
not commit to mitigation, however, unless they have sufficient legal
authorities and expect there will be necessary resources available to
perform or ensure the performance of the mitigation. The agency's own
underlying authority may provide the basis for its commitment to
implement and monitor the mitigation. Alternatively, the authority for
the mitigation may derive from legal requirements that are enforced by
other Federal, state, or local government entities (e.g., air or water
permits administered by local or state agencies).

A. Mitigation Incorporated Into Project Design

Many Federal agencies rely on mitigation to reduce adverse
environmental impacts as part of the planning process for a project,
incorporating mitigation as integral components of a proposed project
design before making a determination about the significance of the
project's environmental impacts.\16\ Such mitigation can lead to an
environmentally preferred outcome and in some cases reduce the
projected impacts of agency actions to below a threshold of
significance. An example of mitigation measures that are typically
included as part of the proposed action are agency standardized best

[[Page 3848]]

management practices such as those developed to prevent storm water
runoff or fugitive dust emissions at a construction site.
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\16\ CEQ NEPA Task Force, ``Modernizing NEPA Implementation'' at
69.
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Mitigation measures included in the project design are integral
components of the proposed action, are implemented with the proposed
action, and therefore should be clearly described as part of the
proposed action that the agency will perform or require to be
performed. Consequently, the agency can address mitigation early in the
decisionmaking process and potentially conduct a less extensive level
of NEPA review.

B. Mitigation Alternatives Considered in Environmental Assessments and
Environmental Impact Statements

Agencies are required, under NEPA, to study, develop, and describe
appropriate alternatives when preparing EAs and EISs.\17\ The CEQ
Regulations specifically identify procedures agencies must follow when
developing and considering mitigation alternatives when preparing an
EIS. When an agency prepares an EIS, it must include mitigation
measures (not already included in the proposed action or alternatives)
among the alternatives compared in the EIS.\18\ Each EIS must contain a
section analyzing the environmental consequences of the proposed action
and its alternatives, including ``[m]eans to mitigate adverse
environmental impacts.'' \19\
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\17\ 42 U.S.C. 4332(2)(C) (mandating that agencies' detailed
statements must include alternatives to the proposed action); Id.
Sec. 4332(E) (requiring agencies to study, develop, and describe
appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative
uses of available resources).
\18\ 40 CFR 1502.14(f) (listing mitigation measures as one of
the required components of the alternatives included in an EIS); id.
Sec. 1508.25(b)(3) (defining the ``scope'' of an EIS to include
mitigation measures).
\19\ Id. Sec. 1502.16(h).
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When a Federal agency identifies a mitigation alternative in an EA
or an EIS, it may commit to implement that mitigation to achieve an
environmentally-preferable outcome. Agencies should not commit to
mitigation measures considered and analyzed in an EIS or EA if there
are insufficient legal authorities, or it is not reasonable to foresee
the availability of sufficient resources, to perform or ensure the
performance of the mitigation. Furthermore, the decision document
following the EA should--and a Record of Decision (ROD) must--identify
those mitigation measures that the agency is adopting and committing to
implement, including any monitoring and enforcement program applicable
to such mitigation commitments.\20\
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\20\ Id. Sec. 1505.2(c) (providing that a record of decision
must state whether all practicable means to avoid or minimize
environmental harm from the alternative selected have been adopted,
and if not, why they were not; and providing that a monitoring and
enforcement program must be adopted and summarized where applicable
for any mitigation).
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C. Mitigation Commitments Analyzed in Environmental Assessments To
Support a Mitigated FONSI

When preparing an EA, many agencies develop and consider committing
to mitigation measures to avoid, minimize, rectify, reduce, or
compensate for potentially significant adverse environmental impacts
that would otherwise require full review in an EIS. CEQ recognizes the
appropriateness, value, and efficacy of providing for mitigation to
reduce the significance of environmental impacts. Consequently, when
such mitigation measures are available and an agency commits to perform
or ensure the performance of them, then these mitigation commitments
can be used to support a FONSI, allowing the agency to conclude the
NEPA process and proceed with its action without preparing an EIS.\21\
An agency should not commit to mitigation measures necessary for a
mitigated FONSI if there are insufficient legal authorities, or it is
not reasonable to foresee the availability of sufficient resources, to
perform or ensure the performance of the mitigation.\22\
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\21\ This guidance approves of the use of the ``mitigated
FONSI'' when the NEPA process results in enforceable mitigation
measures. It thereby amends and supplements previously issued CEQ
guidance that suggested that the existence of mitigation measures
developed during the scoping or EA stages ``does not obviate the
need for an EIS.'' See CEQ, ``Forty Most Asked Questions Concerning
CEQ's National Environmental Policy Act Regulations,'' 46 FR 18,026,
Mar. 23, 1981, available at http://ceq.eh.doe.gov/nepa/regs/40/40P1.htm.
\22\ When agencies consider and decide on an alternative outside
their jurisdiction (as discussed in 40 CFR 1502.14(c)), they should
identify the authority for the mitigation and consider the
consequences of it not being implemented.
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Mitigation commitments needed to lower the level of impacts so that
they are not significant should be clearly described in the mitigated
FONSI document and in any other relevant decision documents related to
the proposed action. Agencies must provide for appropriate public
involvement during the development of the EA and FONSI.\23\
Furthermore, in addition to those situations where a 30-day public
review of the FONSI is required,\24\ agencies should make the EA and
FONSI available to the public (e.g., by posting them on an agency Web
site). Providing the public with clear information about agencies'
mitigation commitments helps ensure the value and integrity of the NEPA
process.
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\23\ 40 CFR 1501.4(b) (requiring agencies to involve
environmental agencies, applicants, and the public, to the extent
practicable); id. Sec. 1501.4(e)(1) (requiring agencies to make
FONSIs available to the affected public as specified in Sec.
1506.6); id. Sec. 1501.4(e)(2) (requiring agencies to make FONSIs
available for public review for thirty days before making any final
determination on whether to prepare an EIS or proceed with an action
when the proposed action is, or is closely similar to, one which
normally requires the preparation of an EIS under agency NEPA
implementing procedures, or when the nature of the proposed action
is one without precedent); id. Sec. 1506.6 (requiring agencies to
make diligent efforts to involve the public in preparing and
implementing their NEPA procedures).
\24\ Id. Sec. 1501.4(e)(2).
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II. Ensuring That Mitigation Commitments Are Implemented

Federal agencies should take steps to ensure that mitigation
commitments are actually implemented. Consistent with their authority,
agencies should establish internal processes to ensure that mitigation
commitments made on the basis of any NEPA analysis are carefully
documented and that relevant funding, permitting, or other agency
approvals and decisions are made conditional on performance of
mitigation commitments.
Agency NEPA implementing procedures should require clear
documentation of mitigation commitments considered in EAs and EISs
prepared during the NEPA process and adopted in their decision
documents. Agencies should ensure that the expertise and professional
judgment applied in determining the appropriate mitigation commitments
are described in the EA or EIS, and that the NEPA analysis considers
when and how those mitigation commitments will be implemented.
Agencies should clearly identify commitments to mitigation measures
designed to achieve environmentally preferable outcomes in their
decision documents. They should also identify mitigation commitments
necessary to reduce impacts, where appropriate, to a level necessary
for a mitigated FONSI. In both cases, mitigation commitments should be
carefully specified in terms of measurable performance standards or
expected results, so as to establish clear performance
expectations.\25\ The agency

[[Page 3849]]

should also specify the timeframe for the agency action and the
mitigation measures in its decision documents, to ensure that the
intended start date and duration of the mitigation commitment is clear.
When an agency funds, permits, or otherwise approves actions, it should
also exercise its available authorities to ensure implementation of any
mitigation commitments by including appropriate conditions on the
relevant grants, permits, or approvals.
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\25\ In 2001, the Committee on Mitigating Wetland Losses,
through the National Research Council (NRC), conducted a nationwide
study evaluating compensatory mitigation, focusing on whether the
process is achieving the overall goal of ``restoring and maintaining
the quality of the nation's waters.'' NRC Committee on Mitigating
Wetland Losses, ``Compensating for Wetland Losses Under the Clean
Water Act'' 2 (2001). The study's recommendations were incorporated
into the 2008 Final Compensatory Mitigation Rule promulgated jointly
by the U.S. Army Corps of Engineers and the U.S. Environmental
Protection Agency. See U.S. Army Corps of Engineers & U.S.
Environmental Protection Agency, ``Compensatory Mitigation for
Losses of Aquatic Resources,'' 73 FR 19,594, Apr. 10, 2008.
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CEQ views funding for implementation of mitigation commitments as
critical to ensuring informed decisionmaking. For mitigation
commitments that agencies will implement directly, CEQ recognizes that
it may not be possible to identify funds from future budgets; however,
a commitment to seek funding is considered essential and if it is
reasonably foreseeable that funding for implementation of mitigation
may be unavailable at any time during the life of the project, the
agency should disclose in the EA or EIS the possible lack of funding
and assess the resultant environmental effects. If the agency has
disclosed and assessed the lack of funding, then unless the mitigation
is essential to a mitigated FONSI or necessary to comply with another
legal requirement, the action could proceed. If the agency committing
to implementing mitigation has not disclosed and assessed the lack of
funding, and the necessary funding later becomes unavailable, then the
agency should not move forward with the proposed action until funding
becomes available or the lack of funding is appropriately assessed (see
Section III, below).

A. Establishing a Mitigation Monitoring Program

Federal agencies must consider reasonably foreseeable future
impacts and conditions in a constantly evolving environment.
Decisionmakers will be better able to adapt to changing circumstances
by creating a sound mitigation implementation plan and through ongoing
monitoring of environmental impacts and their mitigation. Monitoring
can improve the quality of overall agency decisionmaking by providing
feedback on the effectiveness of mitigation techniques. A comprehensive
approach to mitigation planning, implementation, and monitoring will
therefore help agencies realize opportunities for reducing
environmental impacts through mitigation, advancing the integrity of
the entire NEPA process. These approaches also serve NEPA's goals of
ensuring transparency and openness by making relevant and useful
environmental information available to decisionmakers and the
public.\26\
---------------------------------------------------------------------------

\26\ 40 CFR 1500.1(b).
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Adaptive management can help an agency take corrective action if
mitigation commitments originally made in NEPA and decision documents
fail to achieve projected environmental outcomes and there is remaining
federal action. Agencies can, in their NEPA reviews, establish and
analyze mitigation measures that are projected to result in the desired
environmental outcomes, and can then identify those mitigation
principles or measures that it would apply in the event the initial
mitigation commitments are not implemented or effective. Such adaptive
management techniques can be advantageous to both the environment and
the agency's project goals.\27\ Agencies can also, short of adaptive
management, analyze specific mitigation alternatives that could take
the place of mitigation commitments in the event the commitment is not
implemented or effective.
---------------------------------------------------------------------------

\27\ See CEQ NEPA Task Force, ``Modernizing NEPA
Implementation'' at 44.
---------------------------------------------------------------------------

Monitoring is fundamental for ensuring the implementation and
effectiveness of mitigation commitments, meeting legal and permitting
requirements, and identifying trends and possible means for
improvement. Under NEPA, a Federal agency has a continuing duty to
ensure that new information about the environmental impact of its
proposed actions is taken into account, and that the NEPA review is
supplemented when significant new circumstances or information arise
that are relevant to environmental concerns and bear on the proposed
action or its impacts.\28\ For agency decisions based on an EIS, the
CEQ Regulations explicitly require that ``a monitoring and enforcement
program shall be adopted and summarized where applicable for any
mitigation.'' \29\ In addition, the CEQ Regulations state that agencies
may ``provide for monitoring to assure that their decisions are carried
out and should do so in important cases.'' \30\ Accordingly, an agency
should also commit to mitigation monitoring in important cases when
relying upon an EA and mitigated FONSI. Monitoring is essential in
those important cases where the mitigation is necessary to support a
FONSI and thus is part of the justification for the agency's
determination not to prepare an EIS.
---------------------------------------------------------------------------

\28\ 40 CFR 1502.9(c) (requiring supplementation of EISs when
there are substantial changes to the proposed action, or significant
new information or circumstances arise that are relevant to the
environmental effects of the proposed action).
\29\ Id. Sec. 1505.2(c).
\30\ Id. Sec. 1505.3.
---------------------------------------------------------------------------

Agencies are expected to apply professional judgment and the rule
of reason when identifying those cases that are important and warrant
monitoring, and when determining the type and extent of monitoring they
will use to check on the progress made in implementing mitigation
commitments as well as their effectiveness. In cases that are less
important, the agency should exercise its discretion to determine what
level of monitoring, if any, is appropriate. The following are examples
of factors that agencies should consider to determine importance:
Legal requirements of statutes, regulations, or permits;
Human health and safety;
Protected resources (e.g., parklands, threatened or
endangered species, cultural or historic sites) and the proposed
action's impacts on them;
Degree of public interest in the resource or public debate
over the effects of the proposed action and any reasonable mitigation
alternatives on the resource; and
Level of intensity of projected impacts.
Once an agency determines that it will provide for monitoring in a
particular case, monitoring plans and programs should be described or
incorporated by reference in the agency's decision documents.\31\
Agencies have discretion, within the scope of their authority, to
select an appropriate form and method for monitoring, but they should
identify the monitoring area and establish the appropriate monitoring
system.\32\ The form and method of monitoring can be informed by an
agency's past monitoring plans and programs that tracked impacts on
similar resources, as well as plans and programs used by other agencies
or entities, particularly those with an interest in the resource being
monitored. For mitigation commitments that warrant rigorous oversight,
an Environmental Management System (EMS), or other

[[Page 3850]]

data or management system could serve as a useful way to integrate
monitoring efforts effectively.\33\ Other possible monitoring methods
include agency-specific environmental monitoring, compliance
assessment, and auditing systems. For activities involving third
parties (e.g., permittees or grantees), it may be appropriate to
require the third party to perform the monitoring as long as a clear
accountability and oversight framework is established. The monitoring
program should be implemented together with a review process and a
system for reporting results.
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\31\ The mitigation plan and program should be described to the
extent possible based on available and reasonably foreseeable
information in cases where the NEPA analysis and documentation are
completed prior to final design of a proposed project.
\32\ The Department of the Army regulations provide an example
of this approach. See 32 CFR part 651 App. C. These regulations are
summarized in the Appendix to this guidance.
\33\ An EMS provides a systematic framework for a Federal agency
to monitor and continually improve its environmental performance
through audits, evaluations of legal and other requirements, and
management reviews. The potential for EMS to support NEPA work is
further addressed in CEQ, ``Aligning National Environmental Policy
Act Processes with Environmental Management Systems'' 4 (2007)
available at http://ceq.hss.doe.gov/nepa/nepapubs/Aligning_NEPA_Processes_with_Environmental_Management_Systems_2007.pdf">ceq.hss.doe.gov/nepa/nepapubs/Aligning_NEPA_Processes_with_Environmental_Management_Systems_2007.pdf
(discussing the use of EMSs to track implementation and monitoring
of mitigation). In 2001, the Department of the Army announced that
it would implement a recognized environmental management standard,
ISO 14001, across Army installations. ISO 14001 represents a
standardized system to plan, track, and monitor environmental
performance within the agency's operations. To learn more about how
EMS implementation has resulted in an effective EMS for monitoring
purposes at an Army installation, see the Sustainability Web site
for the Army's Fort Lewis installation, available at
sustainablefortlewis.army.mil.
---------------------------------------------------------------------------

Regardless of the method chosen, agencies should ensure that the
monitoring program tracks whether mitigation commitments are being
performed as described in the NEPA and related decision documents
(i.e., implementation monitoring), and whether the mitigation effort is
producing the expected outcomes and resulting environmental effects
(i.e., effectiveness monitoring). Agencies should also ensure that
their mitigation monitoring procedures appropriately provide for public
involvement. These recommendations are explained in more detail below.

B. Monitoring Mitigation Implementation

A successful monitoring program will track the implementation of
mitigation commitments to determine whether they are being performed as
described in the NEPA documents and related decision documents. The
responsibility for developing an implementation monitoring program
depends in large part upon who will actually perform the mitigation--
the lead Federal agency or cooperating agency; the applicant, grantee,
or permit holder; another responsible entity or cooperative non-Federal
partner; or a combination of these. The lead agency should ensure that
information about responsible parties, mitigation requirements, as well
as any appropriate enforcement clauses are included in documents such
as authorizations, agreements, permits, financial assistance awards, or
contracts.\34\ Ultimate monitoring responsibility rests with the lead
Federal agency or agencies to assure that monitoring is occurring when
needed and that results are being properly considered. The project's
lead agency can share monitoring responsibility with joint lead or
cooperating agencies or other entities, such as applicants or grantees.
The responsibility should be clearly described in the NEPA documents or
associated decision documents, or related documents describing and
establishing the monitoring requirements or expectations.
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\34\ Such enforcement clauses, including appropriate penalty
clauses, should be developed as allowable under the applicable
statutory and regulatory authorities.
---------------------------------------------------------------------------

C. Monitoring the Effectiveness of Mitigation

Effectiveness monitoring tracks the success of a mitigation effort
in achieving expected outcomes and environmental effects. Completing
environmental data collection and analyses prior to project
implementation provides an understanding of the baseline conditions for
each potentially affected resource for reference when determining
whether the predicted efficacy of mitigation commitments is being
achieved. Agencies can rely on agency staff and outside experts
familiar with the predicted environmental impacts to develop the means
to monitor mitigation effectiveness, in the same way that they can rely
on agency and outside experts to develop and evaluate the effectiveness
of mitigation (see Section I, above).
When monitoring mitigation, agencies should consider drawing on
sources of information available from the agency, from other Federal
agencies, and from state, local, and tribal agencies, as well as from
non-governmental sources such as local organizations, academic
institutions, and non-governmental organizations. Agencies should
especially consider working with agencies responsible for overseeing
land management and impacts to specific resources. For example,
agencies could consult with the U.S. Fish and Wildlife and National
Marine Fisheries Services (for information to evaluate potential
impacts to threatened and endangered species) and with State Historic
Preservation Officers (for information to evaluate potential impacts to
historic structures).

D. The Role of the Public

Public involvement is a key procedural requirement of the NEPA
review process, and should be fully provided for in the development of
mitigation and monitoring procedures.\35\ Agencies are also encouraged,
as a matter of transparency and accountability, to consider including
public involvement components in their mitigation monitoring programs.
The agencies' experience and professional judgment are key to
determining the appropriate level of public involvement. In addition to
advancing accountability and transparency, public involvement may
provide insight or perspective for improving mitigation activities and
monitoring. The public may also assist with actual monitoring through
public-private partnership programs.
---------------------------------------------------------------------------

\35\ 40 CFR 1506.6 (requiring agencies to make diligent efforts
to involve the public in preparing and implementing their NEPA
procedures).
---------------------------------------------------------------------------

Agencies should provide for public access to mitigation monitoring
information consistent with NEPA and the Freedom of Information Act
(FOIA).\36\ NEPA and the CEQ Regulations incorporate the FOIA by
reference to require agencies to provide public access to releasable
documents related to EISs, which may include documents regarding
mitigation monitoring and enforcement.\37\ The CEQ Regulations also
require agencies to involve the public in the EA preparation process to
the extent practicable and in certain cases to make a FONSI available
for public review before making its final determination on whether it
will prepare an EIS or proceed with the action.\38\ Consequently,
agencies should

[[Page 3851]]

involve the public when preparing EAs and mitigated FONSIs.\39\ NEPA
further requires all Federal agencies to make information useful for
restoring, maintaining, and enhancing the quality of the environment
available to States, counties, municipalities, institutions, and
individuals.\40\ This requirement can include information on mitigation
and mitigation monitoring.
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\36\ 5 U.S.C. 552.
\37\ 42 U.S.C. 4332(2)(C) (requiring Federal agencies to make
EISs available to the public as provided by the FOIA); 40 CFR
1506.6(f) (requiring agencies to make EISs, comments received, and
any underlying documents available to the public pursuant to the
provisions of the FOIA without regard to the exclusion for
interagency memoranda where such memoranda transmit comments of
Federal agencies on the environmental impact of the proposed
action).
\38\ 40 CFR 1501.4(b) (requiring agencies to involve
environmental agencies, applicants, and the public, to the extent
practicable); id. Sec. 1501.4(e)(1) (requiring agencies to make
FONSIs available to the affected public as specified in Sec.
1506.6); id. Sec. 1501.4(e)(2) (requiring agencies to make a FONSI
available for public review for thirty days before making its final
determination on whether it will prepare an EIS or proceed with the
action when the nature of the proposed action is, or is similar to,
an action which normally requires the preparation of an EIS); id.
Sec. 1506.6 (requiring agencies to make diligent efforts to involve
the public in preparing and implementing their NEPA procedures).
\39\ Id. Sec. 1501.4.
\40\ 42 U.S.C. 4332(2)(G).
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Beyond these requirements, agencies are encouraged to make
proactive, discretionary release of mitigation monitoring reports and
other supporting documents, and to make responses to public inquiries
regarding mitigation monitoring readily available to the public through
online or print media. This recommendation is consistent with the
President's Memorandum on Transparency and Open Government directing
agencies to take affirmative steps to make information public without
waiting for specific requests for information.\41\ The Open Government
Directive, issued by the Office of Management and Budget in accordance
with the President's Memorandum, further directs agencies to use their
web sites and information technology capabilities to disseminate, to
the maximum extent practicable, useful information under FOIA, so as to
promote transparency and accountability.\42\
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\41\ Presidential Memorandum for Heads of Executive Departments
and Agencies Concerning the Freedom of Information Act, 74 FR 4,683,
Jan. 21, 2009; accord DOJ, Memorandum for Heads of Executive
Departments and Agencies Concerning the Freedom of Information Act
(Mar. 19, 2009), available at http://www.usdoj.gov/ag/foia-memo-march2009.pdf.
\42\ Office of Mgmt. & Budget, Executive Office of the
President, Open Government Directive, (Dec. 8, 2009), available at
http://www.whitehouse.gov/open/documents/open-government-directive.
---------------------------------------------------------------------------

Agencies should exercise their judgment to ensure that the methods
and media used to provide mitigation and monitoring information are
commensurate with the importance of the action and the resources at
issue, taking into account any risks of harm to affected resources. In
some cases, agencies may need to balance competing privacy or
confidentiality concerns (e.g., protecting confidential business
information or the location of sacred sites) with the benefits of
public disclosure.

III. Remedying Ineffective or Non-Implemented Mitigation

Through careful monitoring, agencies may discover that mitigation
commitments have not been implemented, or have not had the
environmental results predicted in the NEPA and decision documents.
Agencies, having committed to mitigation, should work to remedy such
inadequacies. It is an agency's underlying authority or other legal
authority that provides the basis for the commitment to implement
mitigation and monitor its effectiveness. As discussed in Section I,
agencies should not commit to mitigation considered in an EIS or EA
unless there are sufficient legal authorities and they expect the
resources to be available to perform or ensure the performance of the
mitigation. In some cases, as discussed in Section II, agencies may
exercise their authority to make relevant funding, permitting, or other
agency approvals and decisions conditional on the performance of
mitigation commitments by third parties. It follows that an agency must
rely on its underlying authority and available resources to take
remedial steps. Agencies should consider taking remedial steps as long
as there remains a pending Federal decision regarding the project or
proposed action. Agencies may also exercise their legal authority to
enforce conditions placed on funding, grants, permits, or other
approvals.
If a mitigation commitment is simply not undertaken or fails to
mitigate the environmental effects as predicted, the responsible agency
should further consider whether it is necessary to prepare supplemental
NEPA analysis and documentation.\43\ The agency determination would be
based upon its expertise and judgment regarding environmental
consequences. Much will depend upon the agency's determination as to
what, if any, portions of the Federal action remain and what
opportunities remain to address the effects of the mitigation failure.
In cases where an EIS or a supplementary EA or EIS is required, the
agency must avoid actions that would have adverse environmental impacts
and limit its choice of reasonable alternatives during the preparation
of an EIS.\44\
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\43\ 40 CFR 1502.9(c) (requiring an agency to prepare
supplements to draft or final EISs if the agency makes substantial
changes in the proposed action that are relevant to environmental
concerns, or if there are significant new circumstances or
information relevant to environmental concerns and bearing on the
proposed action or its impacts).
\44\ Id. Sec. 1506.1(a) (providing that until an agency issues
a Record of Decision, no action concerning the proposal may be taken
that would have an adverse environmental impact or limit the choice
of reasonable alternatives).
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In cases where there is no remaining agency action to be taken, and
the mitigation has not been fully implemented or has not been as
effective as predicted, it may not be appropriate to supplement the
original NEPA analysis and documentation. However, it would be
appropriate for future NEPA analyses of similar proposed actions and
relevant programs to consider past experience and address the potential
for environmental consequences as a result of mitigation failure. This
would ensure that the assumed environmental baselines reflect true
conditions, and that similar mitigation is not relied on in subsequent
decisions without more robust provisions for adaptive management or
analysis of mitigation alternatives that can be applied in the event of
mitigation failure.

IV. Conclusion

This guidance is intended to assist Federal agencies with the
development of their NEPA procedures, guidance, and regulations; foster
the appropriate use of Findings of No Significant Impact; and ensure
that mitigation commitments are appropriately and effectively
documented, implemented, and monitored. The guidance also provides
Federal agencies with recommended actions in circumstances where
mitigation is not implemented or fails to have the predicted effect.
Questions regarding this guidance should be directed to the CEQ
Associate Director for NEPA Oversight.

Appendix

Case Study: Existing Agency Mitigation Regulations & Guidance

A number of agencies have already taken actions to improve their
use of mitigation and their monitoring of mitigation commitments
undertaken as part of their NEPA processes. For example, the Department
of the Army has promulgated regulations implementing NEPA for military
installations and programs that include a monitoring and implementation
component.\45\ These NEPA implementing procedures are notable for their
comprehensive approach to ensuring that mitigation proposed in the NEPA
review process is completed and monitored for effectiveness. These
procedures are described in detail below to illustrate one approach
agencies can use to meet the goals of this Guidance.
---------------------------------------------------------------------------

\45\ The Department of the Army promulgated its NEPA
implementing procedures as a regulation.
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a. Mitigation Planning
Consistent with existing CEQ guidelines, the Army's NEPA
implementing regulations place significant emphasis on the planning and
implementation of mitigation

[[Page 3852]]

throughout the environmental analysis process. The first step of
mitigation planning is to seek to avoid or minimize harm.\46\ When the
analysis proceeds to an EA or EIS, however, the Army regulation
requires that any mitigation measures be ``clearly assessed and those
selected for implementation will be identified in the [FONSI] or the
ROD,'' and that ``[t]he proponent must implement those identified
mitigations, because they are commitments made as part of the Army
decision.'' \47\ This is notable as this mitigation is a binding
commitment documented in the agency NEPA decision. In addition, the
adoption of mitigation that reduces environmental impacts below the
NEPA significance threshold is similarly binding upon the agency.\48\
When the mitigation results in a FONSI in a NEPA analysis, the
mitigation is considered legally binding.\49\ Because these regulations
create a clear obligation for the agency to ensure any proposed
mitigation adopted in the environmental review process is performed,
there is assurance that mitigation will lead to a reduction of
environmental impacts in the implementation stage and include binding
mechanisms for enforcement.
---------------------------------------------------------------------------

\46\ See 40 CFR 1508.2.
\47\ 32 CFR 651.15(b).
\48\ Id. Sec. 651.35(g)
\49\ Id. Sec. 651.15(c).
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Another important mechanism in the Army's regulations to assure
effective mitigation results is the requirement to fully fund and
implement adopted mitigation. It is acknowledged in the regulations
that ``unless money is actually budgeted and manpower assigned, the
mitigation does not exist.'' \50\ As a result, a proposed action cannot
proceed until all adopted mitigation is fully resourced or until the
lack of funding is addressed in the NEPA analysis.\51\ This is an
important step in the planning process, as mitigation benefits are
unlikely to be realized unless financial and planning resources are
committed through the NEPA planning process.
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\50\ Id. Sec. 651.15(d).
\51\ Id. Sec. 651.15(d).
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b. Mitigation Monitoring
The Army regulations recognize that monitoring is an integral part
of any mitigation system.\52\ As the Army regulations require,
monitoring plans and implementation programs should be summarized in
NEPA documentation, and should consider several important factors.
These factors include anticipated changes in environmental conditions
or project activities, unexpected outcomes from mitigation, controversy
over the selected alternative, potential impacts or adverse effects on
federally or state protected resources, and statutory permitting
requirements.\53\ Consideration of these factors can help prioritize
monitoring efforts and anticipate possible challenges.
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\52\ Id. Sec. 651.15(i).
\53\ Id. Sec. Sec. 651.15(h)(1)-(4) Appendix C to 32 CFR part
651, 67 FR 15,290, 15,326-28, Mar. 29, 2002.
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The Army regulations distinguish between implementation monitoring
and effectiveness monitoring. Implementation monitoring ensures that
mitigation commitments made in NEPA documentation are implemented. To
further this objective, the Army regulations specify that these
conditions must be written into any contracts furthering the proposed
action. In addition, the agency or unit proposing the action is
ultimately responsible for the performance of the mitigation
activities.\54\ In a helpful appendix to its regulations, the Army
outlines guidelines for the creation of an implementation monitoring
program to address contract performance, the role of cooperating
agencies, and the responsibilities of the lead agency.\55\
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\54\ Id. Sec. 651.15(i)(1).
\55\ See Appendix C to 32 CFR part 651, 67 FR 15,290, 15,326-28,
Mar. 29, 2002.
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The Army's effectiveness monitoring addresses changing conditions
inherent in evolving natural systems and the potential for unexpected
environmental mitigation outcomes. For this monitoring effort, the Army
utilizes its Environmental Management System (EMS) based on the
standardized ISO 14001 protocols.\56\ The core of this program is the
creation of a clear and accountable system for tracking and reporting
both quantitative and qualitative measures of the mitigation efforts.
An action-forcing response to mitigation failure is essential to the
success of any mitigation program. In the context of a mitigated FONSI,
the Army regulations provide that if any ``identified mitigation
measures do not occur, so that significant adverse environmental
effects could be reasonably expected to result, the [agency actor] must
publish a [Notice of Intent] and prepare an EIS.'' \57\ This is an
essential response measure to changed conditions in the proposed agency
action. In addition, the Army regulations address potential failures in
the mitigation systems indentified through monitoring. If mitigation is
ineffective, the agency entity responsible should re-examine the
mitigation and consider a different approach to mitigation. However, if
mitigation is required to reduce environmental impacts below
significance levels are found to be ineffective, the regulations
contemplate the issuance of a Notice of Intent and preparation of an
EIS.\58\
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\56\ See also CEQ, ``Aligning NEPA Processes with Environmental
Management Systems'' (2007), available at http://ceq.hss.doe.gov/nepa/nepapubs/Aligning_NEPA_Processes_with_Environmental_Management_Systems_2007.pdf.
\57\ 32 CFR 651.15(c).
\58\ See id. Sec. 651.35(g) (describing the implementation
steps, including public availability and implementation tracking,
that must be taken when a FONSI requires mitigation); id. Sec.
651.15(k).
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The Army regulations also provide guidance for the challenging task
of defining parameters for effectiveness monitoring. Guidelines include
identifying a source of expertise, using measurable and replicable
technical parameters, conducting a baseline study before mitigation is
commenced, using a control to isolate mitigation effects, and,
importantly, providing timely results to allow the decision-maker to
take corrective action if necessary.\59\ In addition, the regulations
call for the preparation of an environmental monitoring report to
determine the accuracy of the mitigation impact predictions made in the
NEPA planning process.\60\ The report is essential for agency planning
and documentation and promotes public engagement in the mitigation
process.
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\59\ See subsections (g)(1)-(5) of Appendix C to 32 CFR part
651, 67 FR at 15,327.
\60\ 32 CFR 651.15(l).
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c. Public Engagement
The Army regulations seek to integrate robust engagement of the
interested public in the mitigation monitoring program. The regulations
place responsibility on the entity proposing the action to respond to
inquiries from the public and other agencies regarding the status of
mitigation adopted in the NEPA process.\61\ In addition, the
regulations find that ``concerned citizens are essential to the
credibility of [the] review'' of mitigation effectiveness.\62\ The Army
specifies that outreach with the interested public regarding mitigation
efforts is to be coordinated by the installation's Environmental
Office.\63\ These regulations bring the public a step closer to the
process by designating an agency source responsible for enabling public
participation, and by acknowledging the important role the public can
play to ensure the integrity and tracking of the mitigation process.
The success of

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agency mitigation efforts will be bolstered by public access to timely
information on NEPA mitigation monitoring.
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\61\ Id. Sec. 651.15(b).
\62\ Id. Sec. 651.15(k).
\63\ 32 CFR 651.15(j).

Nancy H. Sutley,
Chair, Council on Environmental Quality.
[FR Doc. 2011-1188 Filed 1-20-11; 8:45 am]
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