by Jessica Lee Reece

On January 21, 2010, the Council on Environmental Quality (“CEQ”) issued its final guidance relating to the appropriate use of mitigation under the National Environmental Policy Act (NEPA). The CEQ is charged with overseeing NEPA’s implementation by Federal agencies.

Through its guidance memorandum (76 Fed. Reg. 3843), CEQ attempts to modernize and increase the transparency of NEPA implementation and so the guidance clarifies certain requirements in Environmental Assessments (EA) and Environmental Impact Statements (EIS).

The guidance memo also outlines certain principles that should be applied when Federal agencies develop their NEPA regulations, as well as procedures to guide the agencies’ consideration of mitigation measures, implementation of mitigation and continued monitoring, all while providing for more public participation and accountability.

The final guidance also confirms the use of a “mitigated Finding of No Significant Impact.” A “mitigated FONSI” results when an agency completes its NEPA review and determines that an initial EA, which is based on a commitment to certain mitigation efforts, is sufficient, so that a more detailed (and costly) EIS will not be required. The guidance provides that so long as the agency commits to carry out the mitigation, and establishes a program to ensure compliance, an EIS will not be required.

This guidance is the finalization of the second of three draft guidance documents that were introduced by CEQ in February 2010. The first guidance document, “Establishing, Applying, and Revising Categorical Exclusions Under the National Environmental Policy Act,” was finalized and released in November 2010. 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 final document of this series to be finalized. No release date has been scheduled.

For more information about federal NEPA, and how it and its state counterpart may affect your project, please contact Steve O’Day (soday@sgrlaw.com), Andy Thompson (athompson@sgrlaw.com) or Jessica Lee Reece (jreece@sgrlaw.com).