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[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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
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    \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.
---------------------------------------------------------------------------

    \50\ Id. Sec.  651.15(d).
    \51\ Id. Sec.  651.15(d).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 3853]]

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]
BILLING CODE 3125-W0-P
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