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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
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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. In any case, the agency is
ultimately responsible for preparing an adequate EIS that considers all
reasonable alternatives.
30. Q. When a cooperating agency with jurisdiction by law intends to adopt a
lead agency's EIS and it is not satisfied with the adequacy of the document,
may the cooperating agency adopt only the part of the EIS with which it is
satisfied? If so, would a cooperating agency with jurisdiction by law have to
prepare a separate EIS or EIS supplement covering the areas of disagreement
with the lead agency?
Generally, a cooperating agency may adopt a lead agency's EIS without
re-circulating 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
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