FORTY MOST ASKED QUESTIONS & ANSWERS
Responses to Comments
29a. What response must an agency provide to a comment on a draft EIS
which states that the draft EIS's methodology
is inadequate or inadequately explained? For example, what level of
detail must an agency include in its response to a
simple postcard comment making such an allegation?
- Appropriate responses to comments are described in Section 1503.4.
Normally the responses should result in changes to the text of
an 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 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 the analysis
in the EIS, little if anything need be added in response to such a
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.
29b. How must an agency respond to a comment on a draft EIS that
raises a new alternative not previously considered in
the draft EIS?
- This question might arise in several possible situations. First, a
commentor on a draft EIS may indicate that there is a possible new
alternative which, in the agency's view, is not a reasonable alternative.
Section 150.1(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 for 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 adraft EIS
will raise an alternative which is a minor variation on 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 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 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 altemative, 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.