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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
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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).
38. Q. Must (EAs) and FONSIs be made public?
If so, how should this be done?
A. 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.
39. Q. Can an EA and FONSI be used to impose enforceable mitigation measures,
monitoring programs, or other requirements, even though there is no
requirement in the regulations in such cases for a formal Record of Decision?
A. 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 agency planning and
decision making" 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.
40. Q. If an environmental assessment indicates that the environmental effects
of a proposal are significant but that, with mitigation, those effects may be
reduced to less than significant levels, may the agency make a finding of no
significant impact rather than prepare an EIS? Is that a legitimate function
of an EA and scooping?
A. 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.
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