Mitigation Monitoring or Reporting
Programs
CEQA requires that each public agency adopt objectives, criteria, and specific
procedures to administer its responsibilities under the Act and the CEQA
Guidelines (Section 21082). Accordingly, local agencies should revise their
adopted CEQA guidelines and procedures as necessary to include the requirements
of Section 21081.6.
The task of designing monitoring and reporting programs is the responsibility
of the public agency which is approving the project. Although a public agency
may delegate this work, the agency cannot escape its responsibility for
ensuring the adequacy of the program.
Each city and county may adopt programs which match their unique circumstances.
The contents and complexity of the programs may be expected to vary based
on the characteristics of the project being approved, the environmental
effects being mitigated, and the nature of the mitigation measures themselves.
Further, the public agency may choose whether its program will monitor mitigation,
report on mitigation, or both.
The statute does not define the terms "reporting" or "monitoring,"
leaving this to the interpretation of the affected agency. Later in this
section, we will offer simple definitions for discussion purposes. In practice,
however, there is no clear distinction between monitoring and reporting,
and the program best suited to ensuring compliance with mitigation measures
will generally involve elements of both. For example, reporting requires
the agency to monitor mitigation at some point in time. Likewise, a monitoring
program can include regular reports to the decisionmaking body.
Mitigation Measures
Since the purpose of a monitoring or reporting program is to ensure the
implementation of mitigation measures, a quick look at mitigation measures
will be the first item in our discussion. Mitigation measures are the specific
requirements which will minimize, avoid, rectify, reduce, eliminate, or
compensate for significant environmental effects. See Section 15370 of the
CEQA Guidelines for a full definition.
A monitoring and reporting program's effectiveness depends in large part
upon the quality of the mitigation measures themselves. Poorly drafted measures
are not only difficult to implement, they are difficult to report on and
monitor.
Here are some suggestions for preparing mitigation measures:
Although infeasibility becomes obvious as the agency attempts to monitor
or report on implementation, by that time it is too late. Early in the process
of developing mitigation measures, the EIR or negative declaration preparer
should consider how implementation of each measure is to be reported on
or monitored. This offers a convenient feasibility test.
Reporting
For purposes of simplification, "reporting" may be defined as
a written review of mitigation activities that is presented to the approving
body by either staff or the project developer. A report may be required
at various stages during project implementation and upon completion of the
project.
Reporting without detailed monitoring is suited to projects which have readily
measurable or quantitative mitigation measures or which already involve
regular review. For example, the annual report on general plan status required
under Government Code Section 65400 may serve as the reporting program for
a city or county general plan as long as it meets the requirements of Section
21081.6. Reporting is also suited to simple projects where a means of reviewing
project compliance already exists, such as issuance of building permits
and related inspections.
A program for reporting on the implementation of mitigation measures should
contain at least the following components:
These components may be combined in a checklist, matrix, or other representation
of the required mitigation measures or revisions, any related conditions
of approval, the persons or agencies responsible for ensuring their completion,
and the responsible person's or agency representative's affirmation of completion.
In some cases, where mitigation will occur in stages during the project,
or a mitigation measure contains more than one part, preparing a checklist
for each mitigation measure may be an effective approach.
Monitoring
"Monitoring" can be described as a continuous, ongoing process
of project oversight. Monitoring, rather than simply reporting, is suited
to projects with complex mitigation measures, such as wetlands restoration
or archeological protection, which may exceed the expertise of the local
agency to oversee, which are expected to be implemented over a period of
time, or which require careful implementation to assure compliance.
A program for monitoring the implementation of mitigation measures should
contain at least the following components:
Some agencies prepare a separate worksheet describing each mitigation measure
and its monitoring requirements. These worksheets are provided to the monitors.
General Approaches to Reporting and Monitoring
Following are two basic approaches which an agency might use:
This may be the best way to approach large and complicated development projects
which will have special monitoring requirements. It is useful where a standardized
program alone may be inadequate to such a situation. This approach may also
make sense for small cities and counties which adopt EIRs or mitigated negative
declarations infrequently.
Regardless of the method chosen, a draft AB 3180 program should be made
available to decisionmakers prior to the formal adoption of either a mitigated
negative declaration or the EIR-related findings in Section 21081 (a).
Although not required to do so, some agencies choose to circulate the draft
program during consultation on the draft environmental document. This allows
public and agency comments on the effectiveness of both mitigation measures
and the associated monitoring or reporting program. When circulating a draft,
the agency should specify that the program is not final and is subject to
change prior to adoption.
Ultimately, the agency must enact a program which reflects the mitigation
or project revisions adopted as part of the mitigated negative declaration
or subject to findings under Section 21081 (a), regardless of what might
have been in the draft documents. If mitigation measures are revised, added
or dropped prior to approval of the project, the adopted AB 3180 program
must reflect those changes.
Program Administration
Project monitors, whether agency staff or contract personnel, should be
given clear written guidance regarding the mitigation measures to be monitored
and reported on. This is particularly important in those cases, such as
where a large private project is involved, the applicant will perform the
actual monitoring. Further, when compliance is achieved, there should be
a clear "sign off" by the appropriate agency to ensure that this
compliance is documented.
Worksheets offer a convenient means of tracking compliance. Worksheets can
be used to express: (1) impact being mitigated; (2) mitigation measure for
that impact; (3) implementor; (4) monitor; (5) monitoring requirements;
(6) frequency of monitoring or reporting; (7) standards for completion or
compliance; and (8) verification of compliance. Some agencies also include
a checklist to summarize the monitoring or reporting record.
When the program is a relatively simple one, a checklist rather than a worksheet
may suffice to guide inspections, record findings, and certify compliance.
Implementation
In order to maximize efficiency in implementing a monitoring or reporting
program, the agency should make every effort to integrate the requirements
of the program with its current land use regulations and inspection procedures.
This applies whether the program is comprehensive or project specific. As
a general rule, the more that mitigation monitoring or reporting programs
can utilize existing procedures and requirements, the easier those programs
may be to implement. The more that such programs work outside usual procedures,
the more expensive and time consuming they may be to implement.
This is not intended to say that a program should monitor or report on zoning
or other regulations that are not mitigation measures. While working within
the existing regulatory system, the program's scope is limited to mitigation
measures resulting from the project's mitigated negative declaration or
EIR.
Enforcement
CEQA does not create new authority for agencies to carry out or enforce
mitigation measures. Agencies must rely upon the authority conferred by
other laws. In the case of a city or county, this would include local zoning,
subdivision, and related land use regulations. Typically, enforcement procedures
are enacted by ordinance and provide for administrative dispute resolution
.
OPR recommends that if a jurisdiction-wide AB 3180 program is adopted, that
it contain, or reference other existing regulations which would enforce
compliance with the mitigation measures. A jurisdiction-wide program that
includes enforcement regulations must be adopted by ordinance in order to
be effective. In the absence of a jurisdiction-wide AB 3180 ordinance, individual
mitigation monitoring or reporting programs should reference those existing
regulations, such as the zoning ordinance, that will provide enforcement.
Cost Recovery
Section 21089 authorizes the lead agency to "charge and collect a reasonable
fee from any person proposing a project subject to [CEQA] in order to recover
the estimated costs incurred for procedures necessary to comply with [CEQA]
on the project." This express authority allows the lead agency to levy
fees to cover the costs of mitigation monitoring or reporting programs.
The fee is limited to the estimated cost of the program, including the agency's
administrative costs. Fees may be used to cover the cost of agency staff,
as well as the cost of hiring special monitors or consultants, if needed.
Fees for complex AB 3180 programs, such as those involving long-term monitoring
or continuous observation over time, are often charged on the basis of time
and work. Flat fees are usually charged when the AB 3180 program involves
routine inspections and reporting. In practice, hourly fees and flat fees
charged on a sliding scale based on project type or size are equally popular
among cities and counties.
Responsible and Trustee Agencies
Lead and responsible agencies may adopt different AB 3180 programs for the
same project. This is because the agencies often do not adopt the same set
of mitigation measures. In general. when a lead agency approves a project
for which an EIR was prepared, it adopts feasible mitigation measures for
those portions of the project which it controls or regulates. In turn, the
responsible agency adopts only the mitigation measures pertinent to its
statutory authority. Under ideal circumstances the programs of the lead
and responsible agencies, when taken together, should monitor or
report upon all of the adopted mitigation measures and project revisions.
Section 21081.6 does not require agencies to duplicate monitoring programs.
Agencies can avoid potential duplication by coordinating their relative
roles during the consultation process.
Return to Contents
Next: Common Questions Regarding Section 21081.6
STATE OF CALIFORNIA
Governor's Office of Planning and Research
1400 Tenth Street
Sacramento, CA 95814
916-322-2318