The phrase “range of alternatives” refers to the alternatives discussed in environmental documents.  It includes all reasonable alternatives, which must be rigorously explored and objectively evaluated, as well as those other alternatives, which are eliminated from detailed study with a brief discussion of the reasons for eliminating them. Section 1502.14.

A decisionmaker must not consider alternatives beyond the range of alternatives discussed in the relevant environmental documents. Moreover, a decisionmaker must, in fact, consider all the alternatives discussed in an EIS.  Section 1505.1(e).

For some proposals there may exist a very large or even an infinite number of possible reasonable alternatives.  For example, a proposal to designate wilderness areas within a National Forest could be said to involve an infinite number of alternatives from 0 to 100 percent of the forest.  When there are potentially a very large number of alternatives, only a reasonable number of examples, covering the full spectrum of alternatives, must be analyzed and compared in the EIS.  An appropriate series of alternatives might include dedicating 0, 10, 30, 50, 70, 90, or 100 percent of the Forest to wilderness.  What constitutes a reasonable range of alternatives depends on the nature of the proposal and the facts in each case.

Section 1502.14 requires the EIS to examine all reasonable alternatives to the proposal.  In determining the scope of alternatives to be considered, the emphasis is on what is “reasonable” rather than on whether the proponent or applicant likes or is itself capable of carrying out a particular alternative.  Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.

An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed in the EIS if it is reasonable.  A potential conflict with local or federal law does not necessarily render an alternative unreasonable, although such conflicts must be considered. Section 1506.2(d). Alternatives that are outside the scope of what Congress has approved or funded must still be evaluated in the EIS if they are reasonable, because the EIS may serve as the basis for modifying the Congressional approval or funding in light of NEPA’s goals and policies.  Section 1500.1(a).

The “agency’s preferred alternative” is the alternative which the agency believes would fulfill its statutory mission and responsibilities, giving consideration to economic, environmental, technical and other factors.  The concept of the “agency’s preferred alternative” is different from the “environmentally preferable alternative,” although in some cases one alternative may be both.  See Question 6 below.  It is identified so that agencies and the public can understand the lead agency’s orientation.

Section 1502.14(e) requires the section of the EIS on alternatives to “identify the agency’s preferred alternative if one or more exists, in the draft statement, and identify such alternative in the final statement . . .” This means that if the agency has a preferred alternative at the Draft EIS stage, that alternative must be labeled or identified as such in the Draft EIS.  If the responsible federal official in fact has no preferred alternative at the Draft EIS stage, a preferred alternative need not be identified there.  By the time the Final EIS is filed, Section 1502.14(e) presumes the existence of a preferred alternative and requires its identification in the Final EIS “unless another law prohibits the expression of such a preference.”

The lead agency’s official with line responsibility for preparing the EIS and assuring its adequacy is responsible for identifying the agency’s preferred alternative(s).  The NEPA regulations do not dictate which official in an agency shall be responsible for preparation of EISs, but agencies can identify this official in their implementing procedures, pursuant to Section 1507.3.Even though the agency’s preferred alternative is identified by the EIS preparer in the EIS, the statement must be objectively prepared and not slanted to support the choice of the agency’s preferred alternative over the other reasonable and feasible alternatives.

The “proposed action” may be, but is not necessarily, the agency’s “preferred alternative.” The proposed action may be a proposal in its initial form before undergoing analysis in the EIS process.  If the proposed action is [46 FR 18028] internally generated, such as preparing a land management plan, the proposed action might end up as the agency’s preferred alternative.  On the other hand the proposed action may be granting an application to a non-federal entity for a permit.  The agency may or may not have a “preferred alternative” at the Draft EIS stage (see Question 4 above).  In that case the agency may decide at the Final EIS stage, on the basis of the Draft EIS and the public and agency comments, that an alternative other than the proposed action is the agency’s “preferred alternative.”

The degree of analysis devoted to each alternative in the EIS is to be substantially similar to that devoted to the “proposed action.” Section 1502.14 is titled “Alternatives including the proposed action” to reflect such comparable treatment.  Section 1502.14(b) specifically requires “substantial treatment” in the EIS of each alternative including the proposed action.  This regulation does not dictate an amount of information to be provided, but rather, prescribes a level of treatment, which may in turn require varying amounts of information, to enable a reviewer to evaluate and compare alternatives.

Section 1505.2(b) requires that, in cases where an EIS has been prepared, the Record of Decision (ROD) must identify all alternatives that were considered, “. . . specifying the alternative or alternatives which were considered to be environmentally preferable.” The environmentally preferable alternative is the alternative that will promote the national environmental policy as expressed in NEPA’s Section 101.  Ordinarily, this means the alternative that causes the least damage to the biological and physical environment; it also means the alternative which best protects, preserves, and enhances historic, cultural, and natural resources.

The Council recognizes that the identification of the environmentally preferable alternative may involve difficult judgments, particularly when one environmental value must be balanced against another.  The public and other agencies reviewing a Draft EIS can assist the lead agency to develop and determine environmentally preferable alternatives by providing their views in comments on the Draft EIS.  Through the identification of the environmentally preferable alternative, the decisionmaker is clearly faced with a choice between that alternative and others, and must consider whether the decision accords with the Congressionally declared policies of the Act.

The agency EIS staff is encouraged to make recommendations of the environmentally preferable alternative(s) during EIS preparation.  In any event the lead agency official responsible for the EIS is encouraged to identify the environmentally preferable alternative(s) in the EIS.  In all cases, commentors from other agencies and the public are also encouraged to address this question.  The agency must identify the environmentally preferable alternative in the ROD.

The “alternatives” section is the heart of the EIS.  This section rigorously explores and objectively evaluates all reasonable alternatives including the proposed action. Section 1502.14.  It should include relevant comparisons on environmental and other grounds.  The “environmental consequences” section of the EIS discusses the specific environmental impacts or effects of each of the alternatives including the proposed action. Section 1502.16.  In order to avoid duplication between these two sections, most of the “alternatives” section should be devoted to describing and comparing the alternatives.  Discussion of the environmental impacts of these alternatives should be limited to a concise descriptive summary of such impacts in a comparative form, including charts or tables, thus sharply defining the issues and providing a clear basis for choice among options. Section 1502.14. The “environmental consequences” section environmental effects of the proposed action and of each of the alternatives.  It forms the analytic basis for the concise comparison in the “alternatives” section.

Section 1501.2(d) requires federal agencies to take steps toward ensuring that private parties and state and local entities initiate environmental studies as soon as federal involvement in their proposals can be foreseen.  This section is intended to ensure that environmental factors are considered at an early stage in the planning process and to avoid the situation where the applicant for a federal permit or approval has completed planning and eliminated all alternatives to the proposed action by the time the EIS process commences or before the EIS process has been completed.

Through early consultation, business applicants and approving agencies may gain better appreciation of each other’s needs and foster a decisionmaking process which avoids later unexpected confrontations.

Federal agencies are required by Section 1507.3(b) to develop procedures to carry out Section 1501.2(d).  The procedures should include an “outreach program”, such as a means for prospective applicants to conduct pre-application consultations with the lead and cooperating agencies.  Applicants need to find out, in advance of project planning, what environmental studies or other information will be required, and what mitigation requirements are likely, in connection with the later federal NEPA process.  Agencies should designate staff to advise potential applicants of the agency’s NEPA information requirements and should publicize their pre-application procedures and information requirements in newsletters or other media used by potential applicants.

Complementing Section 1501.2(d), Section 1506.5(a) requires agencies to assist applicants by outlining the types of information required in those cases where the agency requires the applicant to submit environmental data for possible use by the agency in preparing an EIS.

Section 1506.5(b) allows agencies to authorize preparation of environmental assessments by applicants. Thus, the procedures should also include a means for anticipating and utilizing applicants’ environmental studies or “early corporate environmental assessments” to fulfill some of the federal agency’s NEPA obligations.  However, in such cases the agency must still evaluate independently the environmental issues [46 FR 18029] and take responsibility for the environmental assessment.

These provisions are intended to encourage and enable private and other non-federal entities to build environmental considerations into their own planning processes in a way that facilitates the application of NEPA and avoids delay.

Agencies must integrate the NEPA process into other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.  Specifically, the agency must “provide for cases where actions are planned by . . . applicants,” so that designated staff are available to advise potential applicants of studies or other information that will foreseeably be required for the later federal action; the agency shall consult with the applicant if the agency foresees its own involvement in the proposal; and it shall insure that the NEPA process commences at the earliest possible time.  Section 1501.2(d).  (See Question 8.)

The regulations emphasize agency cooperation early in the NEPA process.  Section 1501.6. Section 1501.7 on “scoping” also provides that all affected Federal agencies are to be invited to participate in scoping the environmental issues and to identify the various environmental review and consultation requirements that may apply to the proposed action.  Further, Section 1502.25(b) requires that the draft EIS list all the federal permits, licenses and other entitlements that are needed to implement the proposal.

These provisions create an affirmative obligation on federal agencies to inquire early, and to the maximum degree possible, to ascertain whether an applicant is or will be seeking other federal assistance or approval, or whether the applicant is waiting until a proposal has been substantially developed before requesting federal aid or approval.

Thus, a federal agency receiving a request for approval or assistance should determine whether the applicant has filed separate requests for federal approval or assistance with other federal agencies.  Other federal agencies that are likely to become involved should then be contacted, and the NEPA process coordinated, to insure an early and comprehensive analysis of the direct and indirect effects of the proposal and any related actions.  The agency should inform the applicant that action on its application may be delayed unless it submits all other federal applications (where feasible to do so), so that all the relevant agencies can work together on the scoping process and preparation of the EIS.

No federal decision on the proposed action shall be made or recorded until at least 30 days after the publication by EPA of notice that the particular EIS has been filed with EPA.  Sections 1505.2 and 1506.10.  Section 1505.2 requires this decision to be stated in a public Record of Decision.

Until the agency issues its Record of Decision, no action by an agency or an applicant concerning the proposal shall be taken which would have an adverse environmental impact or limit the choice of reasonable alternatives.  Section 1506.1(a).  But this does not preclude preliminary planning or design work which is needed to support an application for permits or assistance.  Section 1506.1(d).

When the impact statement in question is a program EIS, no major action concerning the program may be taken which may significantly affect the quality of the human environment, unless the particular action is justified independently of the program, is accompanied by its own adequate environmental impact statement and will not prejudice the ultimate decision on the program.  Section 1506.1(c).

Yes, these limitations do apply, without any variation from their application to federal agencies.

The federal agency must notify the applicant that the agency will take strong affirmative steps to insure that the objectives and procedures of NEPA are fulfilled.  Section 1506.1(b). These steps could include seeking injunctive measures under NEPA, or the use of sanctions available under either the agency’s permitting authority or statutes setting forth the agency’s statutory mission.  For example, the agency might advise an applicant that if it takes such action the agency will not process its application.

The effective date of the Council’s regulations was July 30, 1979 (except for certain HUD programs under the Housing and Community Development Act, 42 U.S.C. 5304(h), and certain state highway programs that qualify under Section 102(2)(D) of NEPA for which the regulations became effective on November 30, 1979).  All the provisions of the regulations are binding as of that date, including those covering decisionmaking, public participation, referrals, limitations on actions, EIS supplements, etc.  For example, a Record of Decision would be prepared even for decisions where the draft EIS was filed before July 30, 1979.

But in determining whether or not the new regulations apply to the preparation of a particular environmental document, the relevant factor is the date of filing of the draft of that document.  Thus, the new regulations do not require the redrafting of an EIS or supplement if the draft EIS or supplement was filed before July 30, 1979.  However, a supplement prepared after the effective date of the regulations for an EIS issued in final before the effective date of the regulations would be controlled by the regulations.

Even though agencies are not required to apply the regulations to an EIS or other document for which the draft was filed prior to July 30, 1979, the regulations encourage agencies to follow the regulations “to the fullest extent practicable,” i.e., if it is feasible to do so, in preparing the final document.  Section 1506.12(a).

No.  The date of Congressional authorization for a project is not determinative of whether the Council’s regulations or former Guidelines apply to the particular proposal.  No incomplete projects or proposals of any kind are grandfathered in whole or in part.  Only certain environmental documents, for which the draft was issued before the effective date of the regulations, are grandfathered and [46 FR 18030] subject to the Council’s former Guidelines.

While a trivial violation of the regulations would not give rise to an independent cause of action, such a cause of action would arise from a substantial violation of the regulations. Section 1500.3.

Yes.  Scoping can be a useful tool for discovering alternatives to a proposal, or significant impacts that may have been overlooked.  In cases where an environmental assessment is being prepared to help an agency decide whether to prepare an EIS, useful information might result from early participation by other agencies and the public in a scoping process.

The regulations state that the scoping process is to be preceded by a Notice of Intent (NOI) to prepare an EIS.  But that is only the minimum requirement.  Scoping may be initiated earlier, as long as there is appropriate public notice and enough information available on the proposal so that the public and relevant agencies can participate effectively.

However, scoping that is done before the assessment, and in aid of its preparation, cannot substitute for the normal scoping process after publication of the NOI, unless the earlier public notice stated clearly that this possibility was under consideration, and the NOI expressly provides that written comments on the scope of alternatives and impacts will still be considered.

After a lead agency has been designated (Sec. 1501.5), that agency has the responsibility to solicit cooperation from other federal agencies that have jurisdiction by law or special expertise on any environmental issue that should be addressed in the EIS being prepared. Where appropriate, the lead agency should seek the cooperation of state or local agencies of similar qualifications.  When the proposal may affect an Indian reservation, the agency should consult with the Indian tribe.  Section 1508.5.  The request for cooperation should come at the earliest possible time in the NEPA process.

After discussions with the candidate cooperating agencies, the lead agency and the cooperating agencies are to determine by letter or by memorandum which agencies will undertake cooperating responsibilities.  To the extent possible at this stage, responsibilities for specific issues should be assigned.  The allocation of responsibilities will be completed during scoping.  Section 1501.7(a)(4).

Cooperating agencies must assume responsibility for the development of information and the preparation of environmental analyses at the request of the lead agency.  Section 1501.6(b)(3).  Cooperating agencies are now required by Section 1501.6 to devote staff resources that were normally primarily used to critique or comment on the Draft EIS after its preparation, much earlier in the NEPA process -- primarily at the scoping and Draft EIS preparation stages.  If a cooperating agency determines that its resource limitations preclude any involvement, or the degree of involvement (amount of work) requested by the lead agency, it must so inform the lead agency in writing and submit a copy of this correspondence to the Council.  Section 1501.6(c).

In other words, the potential cooperating agency must decide early if it is able to devote any of its resources to a particular proposal.  For this reason the regulation states that an agency may reply to a request for cooperation that “other program commitments preclude any involvement or the degree of involvement requested in the action that the subject of the environmental impact statement.” (Emphasis added).  The regulation refers to the “action,” rather than to the EIS, to clarify that the agency is taking itself out of all phases of the federal action, not just draft EIS preparation.  This means that the agency has determined that it cannot be involved in the later stages of EIS review and comment, as well as decisionmaking on the proposed action.  For this reason, cooperating agencies with jurisdiction by law (those which have permitting or other approval authority) cannot opt out entirely of the duty to cooperate on the EIS.  See also Question 15, relating specifically to the responsibility of EPA.

Such disputes are resolved by the agencies themselves.  A lead agency, of course, has the ultimate responsibility for the content of an EIS.  But it is supposed to use the environmental analysis and recommendations of cooperating agencies with jurisdiction by law or special expertise to the maximum extent possible, consistent with its own responsibilities as lead agency.  Section 1501.6(a)(2).

If the lead agency leaves out a significant issue or ignores the advice and expertise of the cooperating agency, the EIS may be found later to be inadequate.  Similarly, where cooperating agencies have their own decisions to make and they intend to adopt the environmental impact statement and base their decisions on it, one document should include all of the information necessary for the decisions by the cooperating agencies. Otherwise they may be forced to duplicate the EIS process by issuing a new, more complete EIS or Supplemental EIS, even though the original EIS could have sufficed if it had been properly done at the outset.  Thus, both lead and cooperating agencies have a stake in producing a document of good quality.  Cooperating agencies also have a duty to participate fully in the scoping process to ensure that the appropriate range of issues is determined early in the EIS process.

Because the EIS is not the Record of Decision, but instead constitutes the information and analysis on which to base a decision, disagreements about conclusions to be drawn from the EIS need not inhibit agencies from issuing a joint document, or adopting another agency’s EIS, if the analysis is adequate.  Thus, if each agency has its own “preferred alternative,” both can be identified in the EIS.  Similarly, a cooperating agency with jurisdiction by law may determine in its own ROD that alternative A is the environmentally preferable action, even though the lead agency has decided in its separate ROD that Alternative B is environmentally preferable.

Cooperating agencies (i.e., agencies with jurisdiction by law or special expertise) and agencies that are authorized to develop or enforce environmental standards, must comment on environmental impact statements within their jurisdiction, expertise or authority.  Sections 1503.2, 1508.5.  If a cooperating agency is satisfied that its views are adequately reflected in the environmental impact statement, it should simply comment accordingly.  Conversely, if the cooperating agency determines that a draft EIS is incomplete, inadequate or inaccurate, or it has other comments, it should promptly make such comments, conforming to the requirements of specificity in section 1503.3.

A lead agency has the responsibility to respond to all substantive comments raising significant issues regarding a draft EIS.  Section 1503.4.  However, cooperating agencies are generally under an obligation to raise issues or otherwise participate in the EIS process during scoping and EIS preparation if they reasonably can do so.  In practical terms, if a cooperating agency fails to cooperate at the outset, such as during scoping, it will find that its comments at a later stage will not be as persuasive to the lead agency.

Yes.  EPA has an obligation under Section 309 of the Clean Air Act to review and comment in writing on the environmental impact of any matter relating to the authority of the Administrator contained in proposed legislation, federal construction projects, other federal actions requiring EISs, and new regulations. 42 U.S.C. Sec. 7609.  This obligation is independent of its role as a cooperating agency under the NEPA regulations.

As used by EPA and other agencies, the term “third party contract” refers to the preparation of EISs by contractors paid by the applicant.  In the case of an EIS for a National Pollution Discharge Elimination System (NPDES) permit, the applicant, aware in the early planning stages of the proposed project of the need for an EIS, contracts directly with a consulting firm for its preparation.  See 40 C.F.R. 6.604(g).  The “third party” is EPA which, under Section 1506.5(c), must select the consulting firm, even though the applicant pays for the cost of preparing the EIS.  The consulting firm is responsible to EPA for preparing an EIS that meets the requirements of the NEPA regulations and EPA’s NEPA procedures.  It is in the applicant’s interest that the EIS comply with the law so that EPA can take prompt action on the NPDES permit application.  The “third party contract” method under EPA’s NEPA procedures is purely voluntary, though most applicants have found it helpful in expediting compliance with NEPA.

If a federal agency uses “third party contracting,” the applicant may undertake the necessary paperwork for the solicitation of a field of candidates under the agency’s direction, so long as the agency complies with Section 1506.5(c).  Federal procurement requirements do not apply to the agency because it incurs no obligations or costs under the contract, nor does the agency procure anything under the contract.

Section 1506.5(c), which specifies that a consulting firm preparing an EIS must execute a disclosure statement, does not define “financial or other interest in the outcome of the project.” The Council interprets this term broadly to cover any known benefits other than general enhancement of professional reputation.  This includes any financial benefit such as a promise of future construction or design work on the project, as well as indirect benefits the consultant is aware of (e.g., if the project would aid proposals sponsored by the firm’s other clients).  For example, completion of a highway project may encourage construction of a shopping center or industrial park from which the consultant stands to benefit.  If a consulting firm is aware that it has such an interest in the decision on the proposal, it should be disqualified from preparing the EIS, to preserve the objectivity and integrity of the NEPA process.

When a consulting firm has been involved in developing initial data and plans for the project, but does not have any financial or other interest in the outcome of the decision, it need not be disqualified from preparing the EIS.  However, a disclosure statement in the draft EIS should clearly state the scope and extent of the firm’s prior involvement to expose any potential conflicts of interest that may exist.

Yes.

The EIS must identify all the indirect effects that are known, and make a good faith effort to explain the effects that are not known but are “reasonably foreseeable.”  Section 1508.8(b).  In the example, if there is total uncertainty about the identity of future land owners or the nature of future land uses, then of course, the agency is not required to engage in speculation or contemplation about their future plans.  But, in the ordinary course of business, people do make judgments based upon reasonably foreseeable occurrences.  It will often be possible to consider the likely purchasers and the development trends in that area or similar areas in recent years; or the likelihood that the land will be used for an energy project, shopping center, subdivision, farm or factory.  The agency has the responsibility to make an informed judgment, and to estimate future impacts on that basis, especially if trends are ascertainable or potential purchasers have made themselves known.  The agency cannot ignore these uncertain, but probable, effects of its decisions.

The mitigation measures discussed in an EIS must cover the range of impacts of the proposal.  The measures must include such things as design alternatives that would decrease pollution emissions, construction impacts, esthetic intrusion, as well as relocation assistance, possible land use controls that could be enacted, and other possible efforts.  Mitigation measures must be considered even for impacts that by themselves would not be considered “significant.” Once the proposal itself is considered as a whole to have significant effects, all of its specific effects on the environment (whether or not “significant”) must be considered, and mitigation measures must be developed where it is feasible to do so.  Sections 1502.14(f), 1502.16(h), 1508.14.

All relevant, reasonable mitigation measures that could improve the project are to be identified, even if they are outside the jurisdiction of the lead agency or the cooperating agencies, and thus would not be committed as part of the RODs of these agencies. Sections 1502.16(h), 1505.2(c). This will serve to [46 FR 18032] alert agencies or officials who can implement these extra measures, and will encourage them to do so.  Because the EIS is the most comprehensive environmental document, it is an ideal vehicle in which to lay out not only the full range of environmental impacts but also the full spectrum of appropriate mitigation.

However, to ensure that environmental effects of a proposed action are fairly assessed, the probability of the mitigation measures being implemented must also be discussed.  Thus the EIS and the Record of Decision should indicate the likelihood that such measures will be adopted or enforced by the responsible agencies.  Sections 1502.16(h), 1505.2.  If there is a history of nonenforcement or opposition to such measures, the EIS and Record of Decision should acknowledge such opposition or nonenforcement.  If the necessary mitigation measures will not be ready for a long period of time, this fact, of course, should also be recognized.

[Withdrawn.]

Section 1502.25 of the regulations requires that draft EISs be prepared concurrently and integrated with environmental analyses and related surveys and studies required by other federal statutes.  In addition, Section 1506.4 allows any environmental document prepared in compliance with NEPA to be combined with any other agency document to reduce duplication and paperwork.  However, these provisions were not intended to authorize the preparation of a short summary or outline EIS, attached to a detailed project report or land use plan containing the required environmental impact data.  In such circumstances, the reader would have to refer constantly to the detailed report to understand the environmental impacts and alternatives which should have been found in the EIS itself.

The EIS must stand on its own as an analytical document which fully informs decisionmakers and the public of the environmental effects of the proposal and those of the reasonable alternatives.  Section 1502.1.  But, as long as the EIS is clearly identified and is self-supporting, it can be physically included in or attached to the project report or land use plan, and may use attached report material as technical backup.

Forest Service environmental impact statements for forest management plans are handled in this manner.  The EIS identifies the agency’s preferred alternative, which is developed in detail as the proposed management plan.  The detailed proposed plan accompanies the EIS through the review process, and the documents are appropriately cross-referenced.  The proposed plan is useful for EIS readers as an example, to show how one choice of management options translates into effects on natural resources.  This procedure permits initiation of the 90-day public review of proposed forest plans, which is required by the National Forest Management Act.

All the alternatives are discussed in the EIS, which can be read as an independent document.  The details of the management plan are not repeated in the EIS, and vice versa.  This is a reasonable functional separation of the documents:  the EIS contains information relevant to the choice among alternatives; the plan is a detailed description of proposed management activities suitable for use by the land managers.  This procedure provides for concurrent compliance with the public review requirements of both NEPA and the National Forest Management Act.

Under some circumstances, a project report or management plan may be totally merged with the EIS, and the one document labeled as both “EIS” and “management plan” or “project report.” This may be reasonable where the documents are short, or where the EIS format and the regulations for clear, analytical EISs also satisfy the requirements for a project report.

Under Section 1501.5(b), federal, state or local agencies, as long as they include at least one federal agency, may act as joint lead agencies to prepare an EIS.  Section 1506.2 also strongly urges state and local agencies and the relevant federal agencies to cooperate fully with each other.  This should cover joint research and studies, planning activities, public hearings, environmental assessments and the preparation of joint EISs under NEPA and the relevant “little NEPA” state laws, so that one document will satisfy both laws.

The regulations also recognize that certain inconsistencies may exist between the proposed federal action and any approved state or local plan or law.  The joint document should discuss the extent to which the federal agency would reconcile its proposed action with such plan or law.  Section 1506.2(d).  (See Question 23).

Because there may be differences in perspective as well as conflicts among [46 FR 18033] federal, state and local goals for resources management, the Council has advised participating agencies to adopt a flexible, cooperative approach.  The joint EIS should reflect all of their interests and missions, clearly identified as such.  The final document would then indicate how state and local interests have been accommodated, or would identify conflicts in goals (e.g., how a hydroelectric project, which might induce second home development, would require new land use controls).  The EIS must contain a complete discussion of scope and purpose of the proposal, alternatives, and impacts so that the discussion is adequate to meet the needs of local, state and federal decisionmakers.

The agency should first inquire of other agencies whether there are any potential conflicts.  If there would be immediate conflicts, or if conflicts could arise in the future when the plans are finished (see Question 23(b) below), the EIS must acknowledge and describe the extent of those conflicts.  If there are any possibilities of resolving the conflicts, these should be explained as well.  The EIS should also evaluate the seriousness of the impact of the proposal on the land use plans and policies, and whether, or how much, the proposal will impair the effectiveness of land use control mechanisms for the area.  Comments from officials of the affected area should be solicited early and should be carefully acknowledged and answered in the EIS.

The term “land use plans,” includes all types of formally adopted documents for land use planning, zoning and related regulatory requirements.  Local general plans are included, even though they are subject to future change.  Proposed plans should also be addressed if they have been formally proposed by the appropriate government body in a written form, and are being actively pursued by officials of the jurisdiction.  Staged plans, which must go through phases of development such as the Water Resources Council’s Level A, B and C planning process should also be included even though they are incomplete.

The term “policies” includes formally adopted statements of land use policy as embodied in laws or regulations.  It also includes proposals for action such as the initiation of a planning process, or a formally adopted policy statement of the local, regional or state executive branch, even if it has not yet been formally adopted by the local, regional or state legislative body.

After identifying any potential land use conflicts, the decisionmaker must weigh the significance of the conflicts, among all the other environmental and non-environmental factors that must be considered in reaching a rational and balanced decision.  Unless precluded by other law from causing or contributing to any inconsistency with the land use plans, policies or controls, the decisionmaker retains the authority to go forward with the proposal, despite the potential conflict.  In the Record of Decision, the decisionmaker must explain what the decision was, how it was made, and what mitigation measures are being imposed to lessen adverse environmental impacts of the proposal, among the other requirements of Section 1505.2.  This provision would require the decisionmaker to explain any decision to override land use plans, policies or controls for the area.

An EIS must be prepared if an agency proposes to implement a specific policy, to adopt a plan for a group of related actions, or to implement a specific statutory program or executive directive.  Section 1508.18.  In addition, the adoption of official policy in the form of rules, regulations and interpretations pursuant to the Administrative Procedure Act, treaties, conventions, or other formal documents establishing governmental or agency policy which will substantially alter agency programs, could require an EIS.  Section 1508.18.  In all cases, the policy, plan, or program must have the potential for significantly affecting the quality of the human environment in order to require an EIS.  It should be noted that a proposal “may exist in fact as well as by agency declaration that one exists.” Section 1508.23.

The preparation of an area-wide or overview EIS may be particularly useful when similar actions, viewed with other reasonably foreseeable or proposed agency actions, share common timing or geography.  For example, when a variety of energy projects may be located in a single watershed, or when a series of new energy technologies may be developed through federal funding, the overview or area-wide EIS would serve as a valuable and necessary analysis of the affected environment and the potential cumulative impacts of the reasonably foreseeable actions under that program or within that geographical area.

Tiering is a procedure which allows an agency to avoid duplication of paperwork through the incorporation by reference of the general discussions and relevant specific discussions from an environmental impact statement of broader scope into one of lesser scope or vice versa.  In the example given in Question 24b, this would mean that an overview EIS would be prepared for all of the energy activities reasonably foreseeable in a particular geographic area or resulting from a particular development program.  This impact statement would be followed by site-specific or project-specific EISs.  The tiering process would make each EIS of greater use and meaning to the public as the plan or program develops, without duplication of the analysis prepared for the previous impact statement.

The body of the EIS should be a succinct statement of all the information on environmental impacts and alternatives that the decisionmaker and the public need, in order to make the decision and to ascertain that every significant factor has been examined.  The EIS must explain or summarize methodologies of research and modeling, and the results of research that may have been conducted to analyze impacts and alternatives.

Lengthy technical discussions of modeling methodology, baseline studies, or other work are best reserved for the appendix.  In other words, if only technically trained individuals are likely to understand a particular discussion then it should go in the appendix, and a plain language summary of the analysis and conclusions of that technical discussion should go in the text of the EIS.

The final statement must also contain the agency’s responses to comments on the draft EIS.  These responses will be primarily in the form of changes in the document itself, but specific answers to each significant comment should also be included.  These specific responses may be placed in an appendix.  If the comments are especially voluminous, summaries of the comments and responses will suffice.  (See Question 29 regarding the level of detail required for responses to comments.)

First, if at all possible, the appendix accompanies the EIS, whereas the material which is incorporated by reference does not accompany the EIS.  Thus the appendix should contain information that reviewers will be likely to want to examine.  The appendix should include material that pertains to preparation of a particular EIS.  Research papers directly relevant to the proposal, lists of affected species, discussion of the methodology of models used in the analysis of impacts, extremely detailed responses to comments, or other information, would be placed in the appendix.

The appendix must be complete and available at the time the EIS is filed.  Five copies of the appendix must be sent to EPA with five copies of the EIS for filing.  If the appendix is too bulky to be circulated, it instead must be placed in conveniently accessible locations or furnished directly to commentors upon request.  If it is not circulated with the EIS, the Notice of Availability published by EPA must so state, giving a telephone number to enable potential commentors to locate or request copies of the appendix promptly.

Material that is not directly related to preparation of the EIS should be incorporated by reference.  This would include other EISs, research papers in the general literature, technical background papers or other material that someone with technical training could use to evaluate the analysis of the proposal.  These must be made available, either by citing the literature, furnishing copies to central locations, or sending copies directly to commentors upon request.

Care must be taken in all cases to ensure that material incorporated by reference, and the occasional appendix that does not accompany the EIS, are in fact available for the full minimum public comment period.

The EIS index should have a level of detail sufficient to focus on areas of the EIS of reasonable interest to any reader.  It cannot be restricted to the most important topics.  On the other hand, it need not identify every conceivable term or phrase in the EIS.  If an agency believes that the reader is reasonably likely to be interested in a topic, it should be included.

No.  A keyword index is a relatively short list of descriptive terms that identifies the key concepts or subject areas in a document.  For example it could consist of 20 terms which describe the most significant aspects of an EIS that a future researcher would need: type of proposal, type of impacts, type of environment, geographical area, sampling or modeling methodologies used.  This technique permits the compilation of EIS data banks, by facilitating quick and inexpensive access to stored materials.  While a keyword index is not required by the regulations, it could be a useful addition for several reasons.  First, it can be useful as a quick index for reviewers of the EIS, helping to focus on areas of interest.  Second, if an agency keeps a listing of the keyword indexes of the EISs it produces, the EIS preparers themselves will have quick access to similar research data and methodologies to aid their future EIS work.  Third, a keyword index will be needed to make an EIS available to future researchers using EIS data banks that are being developed.  Preparation of such an index now when the document is produced will save a later effort when the data banks become operational.

Section 1502.17 requires identification of the names and qualifications of persons who were primarily responsible for preparing the EIS or significant background papers, including basic components of the statement.  This means that members of a consulting firm preparing material that is to become part of the EIS must be identified.  The EIS should identify these individuals even though the consultant’s contribution may have been modified by the agency.

Agency personnel who wrote basic components of the EIS or significant background papers must, of course, be identified.  The EIS should also list the technical editors who reviewed or edited the statements. 

The list of preparers should normally not exceed two pages.  Therefore, agencies must determine which individuals had primary responsibility and need not identify individuals with minor involvement.  The list of preparers should include a very brief identification of the individuals involved, their qualifications (expertise, professional disciplines) and the specific portion of the EIS for which they are responsible.  This may be done in tabular form to cut down on length.  A line or two for each person’s qualifications should be sufficient.

Xerox copies of an EIS may be filed with EPA prior to printing only if the xerox copies are simultaneously made available to other agencies and the public.  Section 1506.9 of the regulations, which governs EIS filing, specifically requires Federal agencies to file EISs with EPA no earlier than the EIS is distributed to the public.  However, this section does not prohibit xeroxing as a form of reproduction and distribution.  When an agency chooses xeroxing as the reproduction method, the EIS must be clear and legible to permit ease of reading and ultimate microfiching of the EIS.  Where color graphs are important to the EIS, they should be reproduced and circulated with the xeroxed copy.

Appropriate responses to comments are described in Section 1503.4.  Normally the responses should result in changes in the text of the EIS, not simply a separate answer at the back of the document.  But, in addition, the agency must state what its response was, and if the agency decides that no substantive response to a comment is necessary, it must explain briefly why.

An agency is not under an obligation to issue a lengthy reiteration of its methodology for any portion of an EIS if the only comment addressing the methodology is a simple complaint that the EIS methodology is inadequate.  But agencies must respond to comments, however brief, which are specific in their criticism of agency methodology.  For example, if a commentor on an EIS said that an agency’s air quality dispersion analysis or methodology was inadequate, and the agency had included a discussion of that analysis in the EIS, little if anything need be added in response to such a comment.  However, if the commentor said that the dispersion analysis was inadequate because of its use of a certain computational technique, or that a dispersion analysis was inadequately explained because computational techniques were not included or referenced, then the agency would have to respond in a substantive and meaningful way to such a comment.

If a number of comments are identical or very similar, agencies may group the comments and prepare a single answer for each group.  Comments may be summarized if they are especially voluminous.  The comments or summaries must be attached to the EIS regardless of whether the agency believes they merit individual discussion in the body of the final EIS.

This question might arise in several possible situations.  First, a commentor on a draft EIS may indicate that there is a possible alternative which, in the agency’s view, is not a reasonable alternative.  Section 1502.14(a).  If that is the case, the agency must explain why the comment does not warrant further agency response, citing authorities or reasons that support the agency’s position and, if appropriate, indicate those circumstances which would trigger agency reappraisal or further response. Section 1503.4(a).  For example, a commentor on a draft EIS on a coal fired power plant may suggest the alternative of using synthetic fuel.  The agency may reject the alternative with a brief discussion (with authorities) of the unavailability of synthetic fuel within the time frame necessary to meet the need and purpose of the proposed facility.

A second possibility is that an agency may receive a comment indicating that a particular alternative, while reasonable, should be modified somewhat, for example, to achieve certain mitigation benefits, or for other reasons.  If the modification is reasonable, the agency should include a discussion of it in the final EIS.  For example, a commentor on a draft EIS on a proposal for a pumped storage power facility might suggest that the applicant’s proposed alternative should be enhanced by the addition of certain reasonable mitigation measures, including the purchase and set aside of a wildlife preserve to substitute for the tract to be destroyed by the project.  The modified alternative including the additional mitigation measures should be discussed by the agency in the final EIS.

A third slightly different possibility is that a comment on a draft EIS will raise an alternative which is a minor variation of one of the alternatives discussed in the draft EIS, but this variation was not given any consideration by the agency.  In such a case, the agency should develop and evaluate the new alternative, if it is reasonable, in the final EIS.  If it is qualitatively within the spectrum of alternatives that were discussed in the draft, a supplemental draft will not be needed.  For example, a commentor on a draft EIS to designate a wilderness area within a National Forest might reasonably identify a specific tract of the forest, and urge that it be considered for designation.  If the draft EIS considered designation of a range of alternative tracts which encompassed forest area of similar quality and quantity, no supplemental EIS would have to be prepared.  The agency could fulfill its obligation by addressing that specific alternative in the final EIS.

As another example, an EIS on an urban housing project may analyze the alternatives of constructing 2,000, 4,000, or 6,000 units.  A commentor on the draft EIS might urge the consideration of constructing 5,000 units utilizing a different configuration of buildings.  This alternative is within the spectrum of alternatives already considered, and, therefore, could be addressed in the final EIS.

A fourth possibility is that a commentor points out an alternative which is not a variation of the proposal or of any alternative discussed in the draft impact statement, and is a reasonable alternative that warrants serious agency response.  In such a case, the agency must issue a supplement to the draft EIS that discusses this new alternative.  For example, a commentor on a draft EIS on a nuclear power plant might suggest that a reasonable alternative for meeting the projected need for power would be through peak load management and energy conservation programs.  If the permitting agency has failed to consider that approach in the Draft EIS, and the approach cannot be dismissed by the agency as unreasonable, a supplement to the Draft EIS, which discusses that alternative, must be prepared. (If necessary, the same supplement should also discuss substantial changes in the proposed action or significant new circumstances or information, as required by Section 1502.9(c)(1) of the Council’s regulations.)

If the new alternative was not raised by the commentor during scoping, but could have been, commentors may find that they are unpersuasive in their efforts to have their suggested alternative analyzed in detail by the agency.  However, if the new alternative is discovered or developed later, and it could not reasonably have been raised during the scoping process, then the agency must address it in a supplemental draft EIS.  The agency is, in any case, ultimately responsible for preparing an adequate EIS that considers all alternatives.

Generally, a cooperating agency may adopt a lead agency’s EIS without recirculating it if it concludes that its NEPA requirements and its comments and suggestions have been satisfied.  Section 1506.3(a), (c). If necessary, a cooperating agency may adopt only a portion of the lead agency’s EIS and may reject that part of the EIS with which it disagrees, stating publicly why it did so.  Section 1506.3(a).  A cooperating agency with jurisdiction by law (e.g., an agency with independent legal responsibilities with respect to the proposal) has an independent legal obligation to comply with NEPA.  Therefore, if the cooperating agency determines that the EIS is wrong or inadequate, it must prepare a supplement to the EIS, replacing or adding any needed information, and must circulate the supplement as a draft for public and agency review and comment.  A final supplemental EIS would be required before the agency could take action.  The adopted portions of the lead agency EIS should be circulated with the supplement.  Section 1506.3(b).  A cooperating agency with jurisdiction by law will have to prepare its own Record of Decision for its action, in which it must explain how it reached its conclusions.  Each agency should explain how and why its conclusions differ, if that is the case, from those of other agencies which issued their Records of Decision earlier.

An agency that did not cooperate in preparation of an EIS may also adopt an EIS or portion thereof.  But this would arise only in rare instances, because an agency adopting an EIS for use in its own decision normally would have been a cooperating agency.  If the proposed action for which the EIS was prepared is substantially the same as the proposed action of the adopting agency, the EIS may be adopted as long as it is recirculated as a final EIS and the agency announces what it is doing.  This would be followed by the 30-day review period and issuance of a Record of Decision by the adopting agency.  If the proposed action by the adopting agency is not substantially the same as that in [46 FR 18036] the EIS (i.e., if an EIS on one action is being adapted for use in a decision on another action), the EIS would be treated as a draft and circulated for the normal public comment period and other procedures.  Section 1506.3(b).

The statutory requirements of NEPA’s Section 102 apply to “all agencies of the federal government.” The NEPA regulations implement the procedural provisions of NEPA as set forth in NEPA’s Section 102(2) for all agencies of the federal government.  The NEPA regulations apply to independent regulatory agencies, however, they do not direct independent regulatory agencies or other agencies to make decisions in any particular way or in a way inconsistent with an agency’s statutory charter.  Sections 1500.3, 1500.6, 1507.1, and 1507.3.

If an independent regulatory agency such as FERC has prepared an EIS in connection with its approval of a proposed project, an Executive Branch agency (e.g., the Bureau of Land Management in the Department of the Interior) may, in accordance with Section 1506.3, adopt the EIS or a portion thereof for its use in considering the same proposal.  In such a case the EIS must, to the satisfaction of the adopting agency, meet the standards for an adequate statement under the NEPA regulations (including scope and quality of analysis of alternatives) and must satisfy the adopting agency’s comments and suggestions.  If the independent regulatory agency fails to comply with the NEPA regulations, the cooperating or adopting agency may find that it is unable to adopt the EIS, thus forcing the preparation of a new EIS or EIS Supplement for the same action.  The NEPA regulations were made applicable to all federal agencies in order to avoid this result, and to achieve uniform application and efficiency of the NEPA process.

The Council’s referral procedure is a pre-decision referral process for interagency disagreements.  Hence, Section 1504.3 requires that a referring agency must deliver its referral to the Council not later than 25 days after publication by EPA of notice that the final EIS is available (unless the lead agency grants an extension of time under Section 1504.3(b)).

No, except for cases where agencies provide an internal appeal procedure which permits simultaneous filing of the final EIS and the record of decision (ROD).  Section 1506.10(b)(2).  Otherwise, as stated above, the process is a pre-decision referral process.  Referrals must be made within 25 days after the notice of availability of the final EIS, whereas the final decision (ROD) may not be made or filed until after 30 days from the notice of availability of the EIS.  Sections 1504.3(b), 1506.10(b).  If a lead agency has granted an extension of time for another agency to take action on a referral, the ROD may not be issued until the extension has expired.

Under the regulations, agencies must prepare a “concise public record of decision,” which contains the elements specified in Section 1505.2.  This public record may be integrated into any other decision record prepared by the agency, or it may be separate if decision documents are not normally made public.  The Record of Decision is intended by the Council to be an environmental document (even though it is not explicitly mentioned in the definition of “environmental document” in Section 1508.10).  Therefore, it must be made available to the public through appropriate public notice as required by Section 1506.6(b).  However, there is no specific requirement for publication of the ROD itself, either in the Federal Register or elsewhere.

No.  An environmental impact statement is supposed to inform the decisionmaker before the decision is made.  Sections 1502.1, 1505.2.  The Council’s regulations provide for a 30-day period after notice is published that the final EIS has been filed with EPA before the agency may take final action.  During that period, in addition to the agency’s own internal final review, the public and other agencies can comment on the final EIS prior to the agency’s final action on the proposal.  In addition, the Council’s regulations make clear that the requirements for the summary in an EIS are not the same as the requirements for a ROD.  Sections 1502.12 and 1505.2. 

Lead agencies “shall include appropriate conditions [including mitigation measures and monitoring and enforcement programs] in grants, permits or other approvals” and shall “condition funding of actions on mitigation.” Section 1505.3.  Any such measures that are adopted must be explained and committed in the ROD.

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 which 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 [46 FR 18037] 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.

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.

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 which 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 which fulfills NEPA’s substantive goals.

For cases in which only an environmental assessment will be prepared, the NEPA process should take no more than 3 months, and in many cases substantially less, as part of the normal analysis and approval process for the action.

The environmental assessment is a concise public document which has three defined functions. (1) It briefly provides sufficient evidence and analysis for determining whether to prepare an EIS; (2) it aids an agency’s compliance with NEPA when no EIS is necessary, i.e., it helps to identify better alternatives and mitigation measures; and (3) it facilitates preparation of an EIS when one is necessary.  Section 1508.9(a).

Since the EA is a concise document, it should not contain long descriptions or detailed data which the agency may have gathered.  Rather, it should contain a brief discussion of the need for the proposal, alternatives to the proposal, the environmental impacts of the proposed action and alternatives, and a list of agencies and persons consulted.  Section 1508.9(b).

While the regulations do not contain page limits for EA’s, the Council has generally advised agencies to keep the length of EAs to not more than approximately 10-15 pages. Some agencies expressly provide page guidelines (e.g., 10-15 pages in the case of the Army Corps).  To avoid undue length, the EA may incorporate by reference background data to support its concise discussion of the proposal and relevant issues.

Agencies should avoid preparing lengthy EAs except in unusual cases, where a proposal is so complex that a concise document cannot meet the goals of Section 1508.9 and where it is extremely difficult to determine whether the proposal could have significant environmental effects.  In most cases, however, a lengthy EA indicates that an EIS is needed.

The FONSI is a document in which the agency briefly explains the reasons why an action will not have a significant effect on the human environment and, therefore, why an EIS will not be prepared.  Section 1508.13.  The finding itself need not be detailed, but must succinctly state the reasons for deciding that the action will have no significant environmental effects, and, if relevant, must show which factors were weighted most heavily in the determination.  In addition to this statement, the FONSI must include, summarize, or attach and incorporate by reference, the environmental assessment.

Public review is necessary, for example, (a) if the proposal is a borderline case, i.e., when there is a reasonable argument for preparation of an EIS; (b) if it is an unusual case, a new kind of action, or a precedent setting case such as a first intrusion of even a minor development into a pristine area; (c) when there is either scientific or public controversy over the proposal; or (d) when it involves a proposal which is or is closely similar to one which normally requires preparation of an EIS.  Sections 1501.4(e)(2), 1508.27.  Agencies also must allow a period of public review of the FONSI if the proposed action would be located in a floodplain or wetland.  E.O. 11988, Sec. 2(a)(4); E.O. 11990, Sec. 2(b).

Yes, they must be available to the public.  Section 1506.6 requires agencies to involve the public in implementing their NEPA procedures, and this includes public involvement in the preparation of EAs and FONSIs.  These are public “environmental documents” under Section 1506.6(b), and, therefore, agencies must give public notice of their availability.  A combination of methods may be used to give notice, and the methods should be tailored to the needs of particular cases.  Thus, a Federal Register notice of availability of the documents, coupled with notices in national publications and mailed to interested national groups might be appropriate for proposals that are national in scope.  Local newspaper notices may be more appropriate for regional or site-specific proposals.

The objective, however, is to notify all interested or affected parties.  If this is not being achieved, then the methods should be reevaluated and changed.  Repeated failure to reach the interested or affected public would be interpreted as a violation of the regulations.

Yes.  In cases where an environmental assessment is the appropriate environmental document, there still may be mitigation measures or alternatives that would be desirable to consider and adopt even though the impacts of the proposal will not be “significant.”  In such cases, the EA should include a discussion of these measures or alternatives to “assist [46 FR 18038] agency planning and decisionmaking” and to “aid an agency’s compliance with [NEPA] when no environmental impact statement is necessary.”  Section 1501.3(b), 1508.9(a)(2).  The appropriate mitigation measures can be imposed as enforceable permit conditions, or adopted as part of the agency final decision in the same manner mitigation measures are adopted in the formal Record of Decision that is required in EIS cases.

[N.B.: Courts have disagreed with CEQ’s position in Question 40.  The 1987-88 CEQ Annual Report stated that CEQ intended to issue additional guidance on this topic.  Ed. note.]

Mitigation measures may be relied upon to make a finding of no significant impact only if they are imposed by statute or regulation, or submitted by an applicant or agency as part of the original proposal. As a general rule, the regulations contemplate that agencies should use a broad approach in defining significance and should not rely on the possibility of mitigation as an excuse to avoid the EIS requirement.  Sections 1508.8, 1508.27.

If a proposal appears to have adverse effects which would be significant, and certain mitigation measures are then developed during the scoping or EA stages, the existence of such possible mitigation does not obviate the need for an EIS.  Therefore, if scoping or the EA identifies certain mitigation possibilities without altering the nature of the overall proposal itself, the agency should continue the EIS process and submit the proposal, and the potential mitigation, for public and agency review and comment.  This is essential to ensure that the final decision is based on all the relevant factors and that the full NEPA process will result in enforceable mitigation measures through the Record of Decision.

In some instances, where the proposal itself so integrates mitigation from the beginning that it is impossible to define the proposal without including the mitigation, the agency may then rely on the mitigation measures in determining that the overall effects would not be significant (e.g., where an application for a permit for a small hydro dam is based on a binding commitment to build fish ladders, to permit adequate down stream flow, and to replace any lost wetlands, wildlife habitat and recreational potential).  In those instances, agencies should make the FONSI and EA available for 30 days of public comment before taking action.  Section 1501.4(e)(2).  Similarly, scoping may result in a redefinition of the entire project, as a result of mitigation proposals.  In that case, the agency may alter its previous decision to do an EIS, as long as the agency or applicant resubmits the entire proposal and the EA and FONSI are available for 30 days of review and comment.  One example of this would be where the size and location of a proposed industrial park are changed to avoid affecting a nearby wetland area.