CEQ Issues New Guidance on Mitigation and Monitoring

In an effort to help Federal Agencies ensure the integrity of their environmental reviews and promote sound governmental decisionmaking, the Council on Environmental Quality (CEQ) has issued final guidance on the "Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact. This guidance was developed as part of CEQ's effort to modernize and reinvigorate Federal agency implementation of NEPA. The guidance is effective upon publication in the Federal Register.

Read the Final Guidance Read the Press Release

 

Read the Federal Register Notice   Read the Public Comments Received on the Draft

 

To ensure public feedback, the draft guidance that was released in February of 2010 underwent a 90-day public comment period. CEQ received and reviewed comments representing a broad range of views from private citizens, corporations, environmental organizations, and state agencies, before finalizing the guidance.

NEPA requires Federal agencies to perform environmental analyses to determine the environmental consequences of their proposed actions before they act. When Federal agencies conduct Environmental Assessments (EAs) and Environmental Impact Statements (EISs), they often commit to mitigating the environmental impacts of a proposed action. These mitigation measures are not always implemented or monitored.

CEQ's new guidance clarifies that when agencies premise their environmental analysis on a commitment to mitigate the environmental impacts of a proposed action, they should adhere to those commitments, monitor how they are implemented, and monitor the effectiveness of the mitigation. The guidance states that agencies should also publicly report on these efforts. The guidance recognizes that mitigation and monitoring are important tools that agencies may use to avoid, minimize, rectify, reduce and compensate for potential adverse environmental impacts associated with their actions.

The guidance affirms that:

  • agencies should commit to mitigation in decision documents when they have based environmental analysis upon such mitigation (by including appropriate conditions on grants, permits, or other agency approvals, and making funding or approvals for implementing the proposed action contingent on implementation of the mitigation commitments);
  • agencies should monitor the implementation and effectiveness of mitigation commitments;
  • agencies should make information on mitigation monitoring available to the public, perferably through agency web sites; and
  • agencies should make diligent efforts to make information on mitigation monitoring available to the public, preferably through agency web sites; and
  • agencies should remedy ineffective mitigation when there is Federal action remaining to be taken.

The guidance encourages agencies to develop internal processes for post-decision monitoring to ensure the implementation and effectiveness of the mitigation. It also states that agencies may use adaptive management as part of an agency's action. Adaptive management, when included in the NEPA analysis, allows for the agency to take alternate mitigation actions if mitigation commitments originally made in the NEPA and decision documents fail to achieve projected environmental outcomes.

When conducting an environmental review, an agency may find that a proposed action has the potential for significant environmental impacts, but that those impacts may be mitigated so that they are no longer significant. Mitigation may therefore play a role in an agency's decision on whether to prepare an Environmental Assessment (EA) or a more comprehensive Environmental Impact Statement (EIS). If the agency commits to implementing mitigation that will support a Finding of No Significant Impact (FONSI), then the agency can meet its NEPA responsibilities with an EA. In these cases, an agency may adopt a "mitigated FONSI" and conclude the NEPA review without preparing an EIS.

This guidance clarifies that when agencies adopt a mitigated FONSI, the mitigation requirements should be made public and be accompanied by monitoring and reporting.

 


 

CEQ issued NEPA Guidance on Categorical Exclusions on November 23, 2010

In an effort to help Federal Agencies ensure the integrity of their environmental reviews, the Council on Environmental Quality (CEQ) released final guidance on "Establishing, Applying and Revising Categorical Exclusions under the National Environmental Policy Act [NEPA]" and delivered the Federal Register notice on November 23, 2010. This guidance was developed as part of CEQ's effort to modernize and reinvigorate Federal agency implementation of NEPA, and CEQ will work with the agencies as they implement it. The guidance is effective upon publication in the Federal Register.

The guidance recommends best practices for appropriate use of categorical exclusions. A draft version of the guidance was released on February 18, 2010, for public comment at the NEPA 40th Anniversary celebration (see additional information below). CEQ received and reviewed a broad range of comments from private citizens, corporations, environmental organizations, and state agencies before finalizing the guidance.

The National Environmental Policy Act (NEPA) requires Federal agencies to analyze their proposed actions to determine if they could have significant environmental effects. Over time, through study and experience, agencies may identify activities - such as routine facility maintenance - that do not need to undergo detailed environmental analysis in an environmental assessment (EA) or an environmental impact statement (EIS) because the activities do not individually or cumulatively have a significant effect on the human environment. Agencies can define categories of such activities, called categorical exclusions, in their NEPA implementing procedures, as a way to reduce unnecessary paperwork and delay.

If an agency determines that a proposed activity fits within the description of a categorical exclusion and that there are no extraordinary circumstances that might cause significant environmental effects, no additional NEPA review is required and the agency can proceed with the activity without preparing an EA or EIS. Categorical exclusions are an essential tool in facilitating NEPA implementation and concentrating environmental reviews on instances of potential impacts.

Categorical exclusions have become the most frequently employed method of complying with NEPA. The extensive and expanding use of categorical exclusions underscores the need for clarifying guidance. Categorical exclusions are appropriate in many circumstances but should not be relied on if they thwart the purposes of NEPA, compromising the quality and transparency of agency decisionmaking or the opportunity for meaningful public participation. The guidance is designed to ensure that agencies appropriately and transparently establish and use categorical exclusions.

Read the Final Guidance Read the Press Release

 

Read the Federal Register Notice   Read the Comments Received on the Draft

 


 

CEQ Announced Draft Guidance at 40th Anniversary Celebration

In conjunction with NEPA's 40th Anniversary Celebration, CEQ published three draft NEPA guidance documents for review and comment. Below are links to the draft guidance documents.

- ESTABLISHING AND APPLYING CATEGORICAL EXCLUSIONS for pdf and here for WORD versions.

Comments were due 45 days after publication of the Federal Register notice.

- MITIGATION AND MONITORING for pdf and here for WORD versions.

Comments were due 90 days after publication of the Federal Register notice.

- CONSIDERING GREENHOUSE GAS EMISSIONS AND CLIMATE CHANGE for pdf and here for WORD versions.

Comments were due 90 days after publication of the Federal Register notice.

Additional information is available at www.whitehouse.gov/administration/eop/ceq/initiatives