July 7, 2011

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The Mitigated FONSI

 

CEQ has now Approved the Use of Mitigation to Reduce Environmental Impacts to a Level That Eliminates the Need for an EIS

John C. Lemaster, Shareholder
Ryley Carlock & Applewhite
jlemaster@rcalaw.com

In a significant development for those who work on projects that require review under the National Environmental Policy Act (NEPA),[1] the Council on Environmental Quality (CEQ) [2] recently issued final guidance[3] reversing its past position that an Environmental Impact Statement (EIS) remains necessary even if mitigation measures are developed during the NEPA process that will reduce the reasonably foreseeable environmental impacts of a major federal action to a level that is not significant.[4]

CEQ's new guidance is that "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."[5]

Mitigation can take several different forms, including the following as enumerated in the Final Guidance:

  • 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.[6]

In reversing its prior position,[7] CEQ outlined a number of issues to be considered in connection with a federal agency's issuance of a mitigated FONSI:

Monitoring

  • "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;"[8]
  • The more important the environmental impact being mitigated, the more stringent the monitoring must be;[9]
  • The monitoring plan should be described (or incorporated by reference) in the mitigated FONSI.[10]

Enforcement

  • The mitigation measures must be enforceable, i.e. subject to sufficient legal authority to ensure they will be performed;[11]
  • Likewise, an agency should not issue a mitigated FONSI if it is not reasonable to believe that the necessary funding will be available to ensure adequate monitoring and enforcement;[12]
  • An agency should place appropriate restrictions on authorizations (e.g. grants or permits) given by the agency that will enable the agency to suspend or cancel the authorizations in the event of noncompliance with the mitigation plan;[13]
  • The mitigation requirements should be clearly described in the mitigated FONSI, including measurable performance standards or expected results;[14]
  • Secondary mitigation measures can be identified for implementation in the event that the initial measures are unsuccessful.[15]

Responsibility and Consultation

  • The lead agency may share monitoring responsibilities with coordinating agencies;[16]
  • An agency may rely upon neutral outside experts to help ensure that mitigation and monitoring will be successful;[17]
  • An agency should involve the public when preparing a mitigated FONSI.[18]


[1] 42 U.S.C. § 4331 et seq.

[2]  CEQ was established within the Executive Office for the purpose of overseeing federal agencies' discharge of their duties under NEPA, see, e.g., 42 U.S.C.A. § 4344(3), and issues federal regulations concerning NEPA compliance.

[3]  Memorandum for Heads of Federal Departments and Agencies re: "Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact," dated January 14, 2011 ("Final Guidance"). Available at:

http://www.whitehouse.gov/sites/default/files/microsites/ceq/01 14 11 Mitigation and Monitoring Guidance.pdf

[4]  NEPA's requirement that federal agencies must consider environmental consequences only applies in the case of "major Federal actions" that "significantly" impact the human environment. 42 U.S.C. § 4332(2)(C).  CEQ's implementing regulations outline what constitutes a "Major Federal action," 40 C.F.R. § 1508.18, and what impacts are "significant."  40 C.F.R. § 1508.27.

[5]  Final Guidance at pp. 4-5 (citing 40 CFR § 1508.20).

[6]  Id. at p. 2.

[7] Id. at p. 3 n. 8 (citing its prior guidance, "Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations," 46 Fed. Reg. 18,026 (Mar. 23, 1981), available at ceq.eh.doe.gov/nepalregs/40/40Pl.htm.)

[8]  Id. at p. 10.

[9] Id. (enumerating some factors agencies should use in determining the level of "importance").

[10]  Id. at pp. 10-11.

[11]  Id. at p. 7 and n. 18.

[12]  Id. at p. 7.

[13]  Id. at pp. 9 and 14-15.

[14]  Id. at pp. 7-8.

[15]  Id. at pp. 9-10.

[16]  Id. at p. 12.

[17]  Id. at p. 5.

[18] Id. at p. 13.  However, CEQ recognizes that some information must be treated as confidential, such as "confidential business information or the location of sacred sites."  Id. at 14.


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