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CHAPTER 11
The reasonable alternative mitigation measures and monitoring programs should
have been addressed in the draft and final EIS. The discussion of mitigation
and monitoring in a Record of Decision must be more detailed than a general
statement that mitigation is being required, but not so detailed as to
duplicate discussion of mitigation in the EIS. The Record of Decision should
contain a concise summary identification of the mitigation measures that the
agency has committed itself to adopt.
The Record of Decision must also state whether all practicable mitigation
measures have been adopted, and if not, why not. Section 1505.2(c). The Record
of Decision must identify the mitigation measures and monitoring and
enforcement programs that have been selected and plainly indicate that they
are adopted as part of the agency's decision. If the proposed action is the
issuance of a permit or other approval, the specific details of the mitigation
measures shall then be included as appropriate conditions in whatever grants,
permits, funding or other approvals are being made by the federal agency.
Section 1505.3(a), (b). If the proposal is to be carried out by
the federal agency itself, the Record of Decision should delineate the
mitigation and monitoring measures in sufficient detail to constitute an
enforceable commitment, or incorporate by reference the portions of the EIS
that do so.
34d. Q. What is the enforceability of a Record of Decision?
A. Pursuant to generally recognized principles of federal administrative law,
agencies will be held accountable for preparing Records of Decision that
conform to the decisions actually made and for carrying out the actions set
forth in the Records of Decision. This is based on the principle that an
agency must comply with its own decisions and regulations once they are
adopted. Thus, the terms of a Record of Decision are enforceable by agencies
and private parties. A Record of Decision can be used to compel compliance
with or execution of the mitigation measures identified therein.
35. Q. How long should the NEPA process take to complete?
A. When an EIS is required, the process obviously will take longer than when
an EA is the only document prepared. But the Council's NEPA regulations
encourage streamlined review, adoption of deadlines, elimination of
duplicative work, eliciting suggested alternatives and other comments early
through scoping, cooperation among agencies, and consultation with applicants
during project planning. The Council has advised agencies that under the new
NEPA regulations even large complex energy projects would require only about
12 months for the completion of the entire EIS process. For most major
actions, this period is well within the planning time that is needed in any
event, apart from NEPA.
The time required for the preparation of program EISs may be greater. The
Council also recognizes that some projects will entail difficult long-term
planning and/or the acquisition of certain data that of necessity will require
more time for the preparation of the EIS. Indeed, some proposals should be
given more time for the thoughtful preparation of an EIS and development of a
decision that fulfills NEPA's substantive goals.
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