Wednesday, July 15, 2009

Mitigation Measures: Preliminary Findings

Research Question:
Chapter 343 requires identification of mitigation measures in the preparation of EAs and EISs, yet there is no requirement that the mitigation measures be actually implemented.
  1. Should mitigation measures discussed in the environmental impact assessment document be required by law?
Stakeholder Interview Comments
Two main responses emerged from the stakeholder interviews:
  1. That mitigation measures are already captured in the permitting process, and thus should not be required by law. The argument was made that the current system usually functions well, and that the idea that there is a lack of follow through on mitigation measures may be more of a perceived rather than an actual problem. As a disclosure document with the purpose of providing information, it would be inappropriate to use the EIS as the mechanism by which to require/enforce mitigation measures.
  2. That mitigation measures should be required by law. Some of the suggested ways to accomplish this included looking to NEPAs “record of decision” process and making mitigation measure binding upon acceptance of the document. Another suggestion was for the documents to include a section summarizing the projects’ impacts and suggested mitigations for these impacts. For any measure not tied to a permitting authority, these could be required with a unilateral agreement.
A few other common concerns that arose include: (1) that there should be set thresholds for some impacts after which they cannot be “mitigated down” to avoid doing a full EIS, or after which a project cannot move forward, (2) that there is an issue with enforcement, which is currently lacking. If there is to be more/better enforcement, what agency will be responsible for this? Finally, (3) there was a concern that because mitigation measures are not currently required, they are not given thoughtful and realistic consideration.

Stakeholder Workshop Results
Session1: Review of Results
Opinion was split over the two responses listed above, although the latter, requiring mitigation measures by law, did receive more support. Overwhelmingly, there was agreement that there should be some follow-up and enforcement of mitigation measures.

Session 2: Discussion Group and Report Back
The workshop discussion group came to the conclusion that mitigation measures are best dealt with by regulatory/permitting agencies, not through the EIS process. Mitigation measures should be recorded in the discretionary permitting process. The group felt it was worth considering a system similar to NEPA , where the agency proposing the project is responsible for mitigation. (Although this would work only for agency EAs and EISs) To aid follow-up and enforcement, documents should be required to include a section in the beginning summarizing impacts and mitigation measures, including a table. This will be helpful for reviewing agencies and the public. This group also noted the importance of having unbiased documents, so that impacts are not downplayed and unrealistically mitigated.

Although no suggested solution for enforcement was arrived at, this group noted that there is a lack of a formal enforcement mechanism and agreed that some kind of mechanism is needed. Finally, there was some agreement that it should not be necessary to devote so much space in documents discussing mitigation measures that are already regulated in permitting. (e.g. construction-related impacts).

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