National Environmental Policy Act of 1969 (NEPA)

The NEPA also requires federal agencies to consider mitigation measures before taking action, including the granting of federal permits, that may have adverse environmental consequences (Public Law 91– 190). The Council on Environmental Quality (CEQ), which is responsible for overseeing federal compliance with the NEPA, has promulgated regulations that are binding on federal agencies (40 CFR §§ 1500–1517 (2000)). CEQ defines mitigation to include (a) avoiding the impact altogether by not taking a certain action or parts of an action; (b) minimizing impacts by limiting the degree or magnitude of the action and its implementation; (c) rectifying the impact by repairing, rehabilitating, or restoring the affected environment; (d) reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and (e) compensating for the impact by replacing or providing substitute resources or environments.

The Corps must discuss mitigation options in its NEPA documentation when examining alternatives to the proposed action. Similar to the Fish and Wildlife Coordination Act, NEPA largely imposes procedural requirements. Accordingly, federal agencies must consider the need for mitigation to compensate for federal actions (including the granting of a permit), but NEPA does not mandate that the agencies perform or require mitigation (Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)).

Endangered Species Act (ESA)

In contrast to the Fish and Wildlife Coordination Act and the NEPA, the ESA has more substantive mitigation requirements (Public Law 93– 205, as amended). For example, when a federal agency proposes to take an action (including the granting of a permit), the agency may need to consult with the FWS or the National Marine Fisheries Service (NMFS) to ensure that the proposed action will not violate the ESA. After consultation, the FWS or NMFS may issue a biological opinion that contains “reasonable and prudent alternatives” that the agency must follow to comply with the ESA. Additionally, any ESA permit that authorizes the taking of a protected species must specify how the applicant will “minimize and mitigate the impacts of such taking.”

Food Security Act (FSA)

Although the mitigation requirements of the FSA are limited to agricultural activities and are not directly applicable to the CWA Section 404 program, they deserve some mention. To discourage farmers from con-

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