Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 3843 

PENNSYLVANIA—OZONE

[8-Hour standard] 

Designated area 

Designation a Category/classification 

Date 1 Type Date 1 Type 

*******

Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE: 

Bucks County ...................................................................... ................ Nonattainment .................. ................ Subpart 2/Moderate.3

Chester County ................................................................... ................ Nonattainment .................. ................ Subpart 2/Moderate.3

Delaware County ................................................................ ................ Nonattainment .................. ................ Subpart 2/Moderate.3

Montgomery County ............................................................ ................ Nonattainment .................. ................ Subpart 2/Moderate.3

Philadelphia County ............................................................ ................ Nonattainment .................. ................ Subpart 2/Moderate.3

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is June 15, 2004, unless otherwise noted. 

2 November 22, 2004. 

3Attainment date extended to June 15, 2011. 

* * * * * 

[FR Doc. 2011–1262 Filed 1–20–11; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 

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3844 Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 

1For more information about this announcement, 

see http://www.whitehouse.gov/administration/eop/ 

ceq/initiatives/nepa. 

2National Environmental Policy Act (NEPA) 

Final Guidance, Establishing, Revising and Using 

Categorical Exclusions, 75 FR 75628, Dec. 6, 2010. 

3 Draft Guidance for NEPA Mitigation and 

Monitoring, 75 FR 8046, Feb. 23, 2010. 

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. 

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. 

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 

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Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 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 

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3846 Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 

4The 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. 

5CEQ 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. 

6 42 U.S.C. 4321 (stating that the purposes of 

NEPA include promoting efforts which will prevent 

or eliminate damage to the environment). 

7This 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. 

8See, e.g., CEQ, 1987–1988 Annual Report, 

available at http://www.slideshare.net/whitehouse/

august-1987-1988-the-eighteenth-annual-report-ofthe-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). 

9Robertson v. Methow Valley Citizens Council, 

490 U.S. 332, 352 (1989). 

10CEQ, ‘‘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. 

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

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. 

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

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 

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Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 3847 

11This 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’’). 

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). 

13See id; see also id. § 1507.2 (requiring agencies 

to have personnel and other resources available to 

implement NEPA reviews and meet their NEPA 

responsibilities). 

14 Id. § 1508.20 (defining mitigation to include 

these activities). 

15See id. § 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). 

16CEQ NEPA Task Force, ‘‘Modernizing NEPA 

Implementation’’ at 69. 

guidance.11 This guidance is intended to 

enhance the integrity and credibility of 

the NEPA process and the information 

upon which it relies. 

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: 

• 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

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

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. 

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 

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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. § 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. § 1508.25(b)(3) 

(defining the ‘‘scope’’ of an EIS to include mitigation 

measures). 

19 Id. § 1502.16(h). 

20 Id. § 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). 

21This 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. 

22When 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. 

23 40 CFR 1501.4(b) (requiring agencies to involve 

environmental agencies, applicants, and the public, 

to the extent practicable); id. § 1501.4(e)(1) 

(requiring agencies to make FONSIs available to the 

affected public as specified in § 1506.6); id. 

§ 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. § 1506.6 (requiring agencies 

to make diligent efforts to involve the public in 

preparing and implementing their NEPA 

procedures). 

24 Id. § 1501.4(e)(2). 

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 

management practices such as those 

developed to prevent storm water runoff 

or fugitive dust emissions at a 

construction site. 

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

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

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

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. 

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 

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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. 

26 40 CFR 1500.1(b). 

27See CEQ NEPA Task Force, ‘‘Modernizing 

NEPA Implementation’’ at 44. 

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. § 1505.2(c). 

30 Id. § 1505.3. 

31The 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. 

32The 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. 

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. 

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

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. 

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. 

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 

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33An 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. 

34Such enforcement clauses, including 

appropriate penalty clauses, should be developed as 

allowable under the applicable statutory and 

regulatory authorities. 

35 40 CFR 1506.6 (requiring agencies to make 

diligent efforts to involve the public in preparing 

and implementing their NEPA procedures). 

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. § 1501.4(e)(1) 

(requiring agencies to make FONSIs available to the 

affected public as specified in § 1506.6); id. 

§ 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. § 1506.6 (requiring agencies to make 

diligent efforts to involve the public in preparing 

and implementing their NEPA procedures). 

data or management system could serve 

as a useful way to integrate monitoring 

efforts effectively.33 Other possible 

monitoring methods include agencyspecific 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. 

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 nonFederal 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. 

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 publicprivate partnership programs. 

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 

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39 Id. § 1501.4. 

40 42 U.S.C. 4332(2)(G). 

41Presidential 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-memomarch2009.pdf. 

42Office 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. 

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. § 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). 

45The Department of the Army promulgated its 

NEPA implementing procedures as a regulation. 

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. 

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

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 NonImplemented 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

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. 

a. Mitigation Planning 

Consistent with existing CEQ 

guidelines, the Army’s NEPA 

implementing regulations place 

significant emphasis on the planning 

and implementation of mitigation 

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3852 Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 

46See 40 CFR 1508.2. 

47 32 CFR 651.15(b). 

48 Id. § 651.35(g) 

49 Id. § 651.15(c). 

50 Id. § 651.15(d). 

51 Id. § 651.15(d). 

52 Id. § 651.15(i). 

53 Id. §§ 651.15(h)(1)–(4) Appendix C to 32 CFR 

part 651, 67 FR 15,290, 15,326–28, Mar. 29, 2002. 

54 Id. § 651.15(i)(1). 

55See Appendix C to 32 CFR part 651, 67 FR 

15,290, 15,326–28, Mar. 29, 2002. 

56See 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). 

58See id. § 651.35(g) (describing the 

implementation steps, including public availability 

and implementation tracking, that must be taken 

when a FONSI requires mitigation); id. § 651.15(k). 

59See subsections (g)(1)–(5) of Appendix C to 32 

CFR part 651, 67 FR at 15,327. 

60 32 CFR 651.15(l). 

61 Id. § 651.15(b). 

62 Id. § 651.15(k). 

63 32 CFR 651.15(j). 

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. 

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. 

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. 

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

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

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. 

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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Federal Register / Vol. 76, No. 14 / Friday, January 21, 2011 / Rules and Regulations 3853 

agency mitigation efforts will be 

bolstered by public access to timely 

information on NEPA mitigation 

monitoring. 

Nancy H. Sutley, 

Chair, Council on Environmental Quality. 

[FR Doc. 2011–1188 Filed 1–20–11; 8:45 am] 

BILLING CODE 3125–W0–P 

NATIONAL SCIENCE FOUNDATION 

45 CFR Part 680 

RIN 3145–AA51 

National Science Foundation Rules of 

Practice and Statutory Conflict-ofInterest Exemptions 

AGENCY: National Science Foundation. 

ACTION: Final rule. 

SUMMARY: The National Science 

Foundation (NSF) is amending its 

regulations to remove the provisions 

concerning statutory conflict-of-interest 

exemptions. 

DATES: The final rule is effective on 

January 21, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Robin Clay, Deputy Ethics Official, 

Office of the General Counsel, National 

Science Foundation, 4201 Wilson 

Boulevard, Room 1265, Arlington, 

Virginia 22230; Telephone: (703) 292– 

8060; Facsimile: (703) 292–9041; e-mail: 

COI@nsf.gov. 

SUPPLEMENTARY INFORMATION: The 

National Science Foundation (NSF) is 

amending its regulations to remove the 

provisions in 45 CFR 680.20 (subpart B) 

in their entirety. On December 18, 1996 

(61 FR 66830), the Office of Government 

Ethics (OGE) issued executive branchwide regulations on exemptions and 

waivers for financial interests under 18 

U.S.C. 280(b) (codified at 5 CFR part 

2640). The portion of the OGE 

regulations on exemptions under 18 

U.S.C. 208(b)(2) supersedes the 

provisions of subpart B of the NSF 

regulations (45 CFR part 680). 

Background 

In accordance with OGE’s issuance of 

the final rule regarding 18 U.S.C. 208(b) 

exemptions and waivers (5 CFR 2640), 

the Foundation is issuing this final rule 

removing 45 CFR part 680 subpart B in 

its entirety. 

Because the Foundation is required to 

delete the superseded provisions of 45 

CFR part 680 subpart B relating to 

208(b)(2) exemptions, with no 

discretion in the matter, the Foundation 

finds, pursuant to 5 U.S.C. 533(b)(B), 

that there is good cause not to seek 

public comment on this rule, as such 

comment is unnecessary. Furthermore, 

for the reasons stated above, the 

Foundation finds, pursuant to 5 U.S.C. 

533(d)(3), that good cause exists to make 

this rule effective upon publication of 

this notice. 

List of Subjects in 45 CFR Part 680 

Conflict of interests. 

Accordingly, 45 CFR part 680 is 

amended as follows: 

PART 680—NATIONAL SCIENCE 

FOUNDATION RULES OF PRACTICE 

■ 1. The authority citation for part 680 

is revised to read as follows: 

Authority: 5 U.S.C. 7301; 42 U.S.C. 

1870(a); 5 CFR 2635.105(c)(3). 

■ 2. The heading of part 680 is revised 

to read as set forth above. 

Subpart B—[Removed and Reserved] 

■ 3. Subpart B, consisting of § 680.20, is 

removed and reserved. 

Dated: January 10, 2011. 

Lawrence Rudolph, 

General Counsel. 

[FR Doc. 2011–890 Filed 1–20–11; 8:45 am] 

BILLING CODE 7555–01–P 

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