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If a proposal appears to have adverse effects that would be significant, and
certain mitigation measures are then developed during the scooping or EA
stages, the existence of such possible mitigation does not obviate the need
for an EIS. Therefore, if scooping or the EA identifies certain mitigation
possibilities without altering the nature of the overall proposal itself, the
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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.
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